Case: 12-3644 Document: 12-1 Page: 1 09/17/2012 721184 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500
MOTION INFORMATION STATEMENT
Docket Number(s): 12-3644 Caption [use short title]
Motion for: Sta y Pendin g A pp eal and Admin. Sta y
Set forth below precise, complete statement of relief sought: Hedges, et al. v. Obama, et al. Immediate administrative stay of district court
in j unction and sta yp endin g a pp eal.
MOVING PARTY: Barack Obama, et al. OPPOSING PARTY: Christopher Hedges, et al. 9 Plaintiff ✔9 Defendant 9✔ Appellant/Petitioner 9 Appellee/Respondent
MOVING ATTORNEY: A ugus tE . Fl en tj e OPPOSING ATTORNEY: Bruce Ira Afran [name of attorney, with firm, address, phone number and e-mail] De p artment of Justice, Room 3613 10 Braeburn Drive 950 Penns y lvania Avenue NW Princeton, NJ 08540 Washington, DC 20530 ( 609 ) 924-2075 au g ust.flent j e @ usdo j . g ov -- 202-514-3309 [email protected]
Court-Judge/Agency appealed from: S.D.N.Y., Jud g e Forrest
Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? ✔9 Yes 9 No ✔9 Yes 9 No (explain): Has this relief been previously sought in this Court? 9 Yes ✔9 No Requested return date and explanation of emergency: Immediate. Opposing counsel’s position on motion: 9 Unopposed ✔9 Opposed 9 Don’t Know District court in j unction in j ects dan g erous confusion Does opposing counsel intend to file a response: 9 Yes 9 No ✔9 Don’t Know into the conduct of military operations abroad.
Is oral argument on motion requested? 9 Yes ✔9 No (requests for oral argument will not necessarily be granted)
Has argument date of appeal been set? 9 Yes ✔9 No If yes, enter date:______
Signature of Moving Attorney: ______s/August E. Flentje Date: ______09/17/2012 Service by: ✔9 CM/ECF 9 Other [Attach proof of service]
ORDER
IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk of Court
Date: ______By: ______
Form T-1080 (rev. 7-12) Case: 12-3644 Document: 12-1 Page: 2 09/17/2012 721184 42
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
______) CHRISTOPHER HEDGES, et al., ) ) Plaintiffs, ) ) No. 12-3644 v. ) ) BARACK OBAMA, et al., ) ) Defendants. ) ______)
DEFENDANTS-APPELLANTS’ EMERGENCY MOTION FOR STAY PENDING APPEAL AND FOR AN IMMEDIATE STAY DURING THE CONSIDERATION OF THIS MOTION
PREET BHARARA STUART F. DELERY United States Attorney Acting Assistant Attorney General
BENJAMIN H. TORRANCE BETH S. BRINKMANN CHRISTOPHER B. HARWOOD Deputy Assistant Attorney General Assistant United States Attorneys ROBERT M. LOEB JEH CHARLES JOHNSON (202) 514-4332 General Counsel AUGUST E. FLENTJE Department of Defense (202) 514-3309 Attorneys, Appellate Staff Civil Division, Room 3613 Department of Justice 950 Pennsylvania Ave., NW Washington, D.C. 20530
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INTRODUCTION AND SUMMARY
By this emergency application, the government requests an immediate
administrative stay pending resolution of the government’s motion for a stay, as well
as a stay pending final disposition of this appeal.
This is a suit brought by a handful of journalists and activists who, based on
their stated activities, are in no danger whatsoever of ever being captured and
detained by the U.S. military. In accepting plaintiffs’ constitutional challenges, the
district court struck down, as unconstitutional on its face, a duly-enacted Act of
Congress – Section 1021(b)(2) of the National Defense Authorization Act of 2012
(NDAA), Pub. L. No. 112-81, 125 Stat. 1298 (Dec. 31, 2011), and entered a
sweeping permanent injunction against invoking it. Order (September 12, 2012)
(attached as Exhibit 1). That law explicitly affirms the President’s detention
authority under the earlier Authorization for Use of Military Force (AUMF), 115
Stat. 224 (2001). The AUMF was passed by Congress in the immediate aftermath
of the attacks on September 11, 2001, and constitutes the President’s central
legislative authority for the ongoing military operations against al-Qaeda, the
Taliban, and associated forces.
Not only did the court enjoin Section 1021(b)(2) of the NDAA, but the district court also went on to reject, albeit not enjoin, the Executive Branch’s long-standing interpretation of the AUMF, which interpretation includes, in defining the scope of
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detention authority, the concepts of “substantial support” and “associated forces.”
That interpretation has been endorsed by two Presidents, by the D.C. Circuit in habeas litigation brought by Guantanamo detainees, and by the Congress in Section
1021(b)(2). The district court nonetheless dispensed with that interpretation. Put
another way, the district court has taken it upon itself to disagree with an
interpretation of the military’s detention authority that had previously been endorsed
by all three Branches of government. What is more, the district court expressly
invites actions for contempt sanctions if the military exercises detention authority in
a manner inconsistent with the court’s deeply flawed understanding of the scope of
that authority.
This is vastly more troubling than the court’s prior preliminary injunction.
There the court expressly acknowledged that the government’s AUMF authority
remained, Memorandum Order at 5 (May 16, 2012), and explicitly “agree[d] [with
the government] that the [preliminary] injunction does not go beyond Section
1021(b)(2).” Memorandum Order at 2 (June 6, 2012).
In the permanent injunction ruling, the district court has now taken the
additional step of expressly inviting actions for contempt sanctions, apparently even
by persons not party to the suit, if the military exercises detention authority in a
manner consistent with the Executive’s long-standing interpretation, endorsed by
the courts and Congress, of the government’s detention authority under the AUMF.
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Order at 14. In inviting those contempt proceedings, the district court order threatens irreparable harm to national security and the public interest by injecting added burdens and dangerous confusion into the conduct of military operations abroad during an active armed conflict. There should be no mistake: the court’s opinion, and its invitation of contempt proceedings, are addressed directly to
detention practices in areas of active hostilities.
An immediate stay should be entered for these and other reasons:
First, the district court has enjoined wholesale an Act of Congress on the
ground that it is facially unconstitutional. It is basic that all Acts of Congress are
presumed constitutional and should remain in effect pending a final decision on the
merits by the Supreme Court. This must be true especially in matters of national
security and the conduct of military operations.
Second, the injunction, which was entered against the President as
Commander-in-Chief in his conduct of ongoing military operations, is
unprecedented and exceeded the court’s authority. Moreover, the injunction
appears to be worldwide in its effect, intruding upon military operations in the
ongoing armed conflict against al-Qaeda, the Taliban, and associated forces.
Third, a stay will not harm plaintiffs. The district court entered this
extraordinary injunction in a case in which none of the plaintiffs even have standing;
the reality is they face absolutely no threat of military detention under Section 1021
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of the NDAA or the AUMF based on the conduct in which they say they want to
engage.
Fourth, the district court’s objections to Section 1021(b)(2) are, as stated before, at odds with the interpretation that has been given to the President’s
detention authority by two Presidents, the D.C. Circuit, and the Congress itself.
Further, in taking Congress to task for a lack of greater specificity or a scienter requirement in Section 1021(b)(2), the district court misunderstood the fundamental purpose of Section 1021(b)(2) and the AUMF; they are war authorizations conferred upon the President, not penal statutes intended to regulate and punish conduct.
Throughout the history of this Nation, war authoritizations such as this simply do not, cannot, and should not provide the level of specificity that the district court believes they require.
The district court’s overbroad worldwide injunction is erroneous as a matter of law and threatens tangible and dangerous consequences in the conduct of an active military conflict. The order should be stayed immediately and remain stayed until final resolution of the appeal.
STATEMENT
A. Statutory Background
In response to the attacks of September 11, 2001, Congress passed the
Authorization for Use of Military Force (AUMF) in 2001. The AUMF authorizes
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“the President * * * to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” AUMF § 2(a), 115 Stat. 224. The President has exercised his authority to order the Armed Forces to fight both the al-Qaeda terrorist network and the Ta1iban regime that harbored it in Afghanistan. Armed conflict with al-Qaeda and the Taliban, and forces associated with them, remains ongoing, and in connection with those military operations, persons captured by the United
States and its coalition partners have been detained pursuant to the AUMF authority.
In a challenge to one of those detentions, and interpreting the AUMF, a plurality of the Supreme Court explained that the “detention of individuals . . . for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’
Congress has authorized the President to use.” Hamdi v. Rumsfeld, 542 U.S. 507,
518; see also Boumediene v. Bush, 553 U.S. 723, 733 (2008) (reaffirming holding of
Hamdi).
Over the years, spanning two Presidents, the Executive Branch has adopted a publicly available interpretation of the AUMF. The government submitted a refined interpretation of the AUMF to the federal district court in Washington on
March 13, 2009, in the ongoing habeas litigation brought by Guantanamo detainees.
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See Memorandum Regarding Government’s Detention Authority [March 2009
Memo.] (March 13, 2009), available at http://www.justice.gov/opa/documents/
memo-re-det-auth.pdf. 1 That definition, which the government explained was
“informed by principles of the laws of war,” is as follows:
The President has the authority to detain persons that the President determines planned, authorized, committed or aided the terrorists attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
March 2009 Memo. at 2.
Over the last three and a half years, this interpretation has been utilized by the
Executive Branch in the habeas litigation brought by the Guantanamo detainees, and the courts have accepted and endorsed it – including, specifically, the concepts of
“substantial support” and “associated forces.” See, e.g., Khan v. Obama, 655 F.3d
20, 32-33 (D.C. Cir. 2011); Al-Bihani, v. Obama, 590 F. 3d 866, 872 (D.C. Cir.
2010); Al-Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010), cert. denied, 131
S.Ct. 1001 (2011); Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir. 2010); Awad
1 The March 2009 interpretation refined a prior interpretation issued in 2004, which generally covered all “supporters” rather than “substantial supporters” and was not expressly informed by the laws of war. See Parhat v. Gates, 532 F.3d 834, 837 38 (D.C. Cir. 2008) (describing 2004 definition). 6
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v. Obama, 608 F.3d. 1, 11-12 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 1814 (2011),
Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009).
In 2011, Congress enacted its own endorsement of the Executive Branch’s interpretation of its detention authority under the AUMF, when it passed Section
1021 of the National Defense Authorization Act (NDAA). Among other things, the law expressly “affirms that the authority of the President” under the AUMF
“includes the authority for the Armed Forces * * * to detain covered persons.”
NDAA § 1021(a). Section 1021(b)(2) of the NDAA then defines “covered persons” to include:
A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
NDAA § 1021(b)(2). This is a nearly verbatim affirmation by the Congress of the
Executive Branch’s interpretation of the AUMF. See March 2009 Memo. at 1-2.
Section 1021 further specifies that the NDAA affirms, and does not alter, the authority encompassed by the AUMF, stating that “[n]othing in this section is intended to limit or expand the authority of the President or the scope of the
Authorization for Use of Military Force.” NDAA § 1021(d); see also Statement by
Pres. Barack Obama upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11, S12 (Dec.
31, 2011) (provision “breaks no new ground and is unnecessary” because the
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“authority it describes was included in the 2001 AUMF, as recognized by the
Supreme Court and confirmed through lower court decisions since then”). Section
1021 further specifies that “[n]othing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” NDAA § 1021(e).
B. Factual Background and Proceedings Below
1. Plaintiffs are individual journalists and public advocates. See Order at
16-28. They filed this suit claiming that Section 1021(b)(2) of the NDAA violates their free speech and association rights as well as due process rights.
Complaint at 18-19, 20-22. Plaintiffs claim that they “hav[e] an actual and
reasonable fear that their activities will subject them to indefinite military detention
pursuant to § 1021(b)(2).” Order at 3.2
2. The district court rejected the government’s argument that plaintiffs lack
standing to obtain a permanent injunction against Section 1021 because they face
2 In support of their claims, some of the plaintiffs testified before the district court. For example, plaintiff Hedges testified that he is a journalist and had “interview[ed] al-Qaeda members who were later detained and that some of his works have appeared on Islamic and jihadist websites.” Id. at 16, 19. Plaintiff O’Brien founded a group called the U.S. Day of Rage and operates a web site called WL Central. Id. at 20. She testified that she had published articles critical of Guantanamo and learned that “information about U.S. Day of Rage had been posted on . . . two al-Qaeda recruitment sites.” Order at 22-23. Two other plaintiffs are foreign nationals living abroad. Order at 25-28; see Complaint ¶¶ 5-6. 8
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no risk of harm from the statute, inasmuch as Section 1021 was only a
“reaffirmation of the AUMF” that has been in place for more than 10 years, and plaintiffs had faced no prospect of detention during that time. Order at 33. The court disagreed based on its view that the “AUMF set forth detention authority tied directly and only to September 11, 2001,” whereas Section 1021 “adds significant scope in its use of the phrases ‘substantially supported,’ ‘associated forces that are engaged in hostilities against the United States or its coalition partners,’ and
‘directly supported.’” Id. at 35, 43. The court therefore concluded that plaintiffs reasonably feared application of the new law to them. Id. at 57.
On the merits, the court first ruled that Section 1021(b)(2) is unconstitutional on its face because it is an impermissible content-based restriction on speech.
Order at 82-97. The court acknowledged that the statute “does have a legitimate, non-First Amendment aspect” – for example, it covers detention of “members of
al-Qaeda fighting U.S. forces on a battlefield outside of U.S. territory.” Id. at 84,
91. Nonetheless, the court concluded that the provision must be permanently
enjoined on its face, i.e. in all its applications, because there is “some amount of
undefined activities protected by the First Amendment” that might be covered by
the law. Id. at 97.
The court also held that Section 1021(b)(2) is unconstitutionally vague in
violation of due process, because of its use of the terms “substantially supported”
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and “associated forces.” Order at 99. The court rejected the government’s
argument that the scope of military detention authority had been defined with sufficient clarity, including in the series of D.C. Circuit cases involving
Guantanamo detentions, which had interpreted the scope of detention authorized under the AUMF that Congress then explicitly reaffirmed in the NDAA. Id. at
106-07.
The court’s order “permanently enjoins enforcement of § 1021(b)(2) in any
manner, as to any person.” Order at 111-12. It also states that “[m]ilitary
detention based on allegations of ‘substantially supporting’ or ‘directly supporting’
the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF
and is enjoined by this Order regarding § 1021(b)(2).” Id. at 112.
3. On September 14, 2012, the government filed a motion in the district
court seeking a stay pending appeal and an immediate interim stay pending
resolution of the stay motion. The district court denied the request for an
immediate interim stay on September 14, and indicated informally that it would not
resolve the stay motion until at least September 19. Later on September 14, the
government informed this Court that it would seek an interim stay, and filed the
instant emergency motion on September 17.
ARGUMENT
An immediate administrative stay should be entered pending resolution of the
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government’s motion for a stay pending appeal of the district court’s order. The district court has entered a sweeping injunction, directly against the President and the Secretary of Defense, that strikes down as facially unconstitutional a federal statute relating to the United States’ power to detain individuals as part of the conflict with al-Qaeda, the Taliban, and associated forces, with implications for ongoing military operations and causing potential harm to national security. It also expressly includes an invitation for contempt proceedings that appears to envision an exercise of the court’s authority beyond enjoining Section 1021(b)(2) to deter the military from continuing to adhere to the reading of the AUMF that has stood for years and has been approved by the D.C. Circuit and Congress. This Court has entered such immediate administrative stay orders in past cases, and should do so here to give it time to consider the submissions from the parties. See, e.g., Acorn v.
United States, No. 10-992, Order, D.E. 23 (2d Cir. April 2, 2010); In re: Bureau of
Alcohol, Tobacco, Firearms and Explosives, No. 04-3738 (2d Cir. July 19, 2004).
We have contacted counsel for plaintiffs, and they have indicated that they oppose the relief requested in this motion.
A full stay pending appeal is also necessary and fully warranted in this case.
In considering a request for a stay pending appeal, this Court considers four factors:
“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a
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stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” In re World
Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) (footnote omitted).
Here, each factor weighs heavily in favor of staying the permanent injunction pending final resolution of the government’s appeal.
Before addressing the stay factors in detail, however, it is critical to understand the unprecedented nature of the suit the district court entertained and the injunction it granted: they are against the President of the United States and the
Secretary of Defense, concerning the conduct of congressionally-authorized military operations against al-Qaeda, the Taliban, and associated forces. No such injunctive action should lie in that context, and no such relief should be granted. This is a critical point that cuts across the stay factors: it is a threshold bar to the action, it is one of many reasons the government is likely to succeed on the merits, and it in any event is a powerful equity weighing against the granting of relief to plaintiffs.
The district court has enjoined the President, as Commander in Chief, from carrying out wartime operations specifically authorized by Congress. See NDAA §
1021(a) (“affirm[ing] the authority of the President to use all necessary and
appropriate force,” including the detention authority reaffirmed in § 1021(b)(2)).
Even outside the war context, the Supreme Court has made clear that an injunctive
action against the President could lie, if at all, only in very limited circumstances,
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and that any such injunction would be extraordinary. Thus, in Franklin v.
Massachusetts, 505 U.S.788 (1992), the plurality concluded that, although the Court had “left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty,’ Mississippi v.
Johnson, 4 Wall. 475, 498-499 (1867),” and had held that the President may be
subject to a subpoena to provide information relevant to an ongoing criminal
prosecution, “in general” the courts have “’no jurisdiction of a bill to enjoin the
President in the performance of his official duties,’” id. at 802-803 (plurality).
Justice Scalia reached the same conclusion, quoting the same passage from
Mississippi v. Johnson, id. at 827, and also quoting a treatise for the proposition that
“[n]o court has ever issued an injunction against the President himself,” ibid.
(citation omitted). Thus, “at the threshold, the District Court should have evaluated
whether injunctive relief against the President was available.” Id. at 803 (plurality
opinion).3
If ever an action for injunctive relief might lie against the President, one does not lie in the context of this case, which relates to core military functions that are being carried out under the authority of the President at a time of ongoing armed conflict under a specific congressional authorization. See Hamdi v.
Rumsfeld, 542 U.S. 507, 519 (2004) (plurality) (“detention to prevent a
3 See also id. at 827-28 (Scalia, J., concurring) (“For similar reasons, I think we cannot issue a declaratory judgment against the President”). 13
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combatant’s return to the battlefield is a fundamental incident of waging war”).
The constitutional concerns are particularly acute where an injunction would entail
“judicial intrusion into the Executive’s ability to conduct military operations
abroad.” Munaf v. Geren, 553 U.S. 674, 700 (2008); see also Holder v.
Humanitarian Law Project [HLP], 130 S. Ct. 2705, 2727 (2010) (in national
security matters, courts are reluctant to issue an injunction in part due to the “lack of
competence” on the part of the courts). Here, the authority being enjoined stems
directly from Congress’s constitutional authority to declare war and raise and
support armies, and the military’s reliance on it stems directly from the President’s
constitutional authority as commander in chief. U.S. Const., Art. I, § 8 & Art. II.
§ 2.4
4 Injunctive relief is also inappropriate against the Secretary of Defense in this case. Where, as here, Executive Branch officers assist the President in carrying out discretionary powers and responsibilities vested in the President by the Constitution, as is true of the Commander-in-Chief power, “their acts are his acts.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803); see also 10 U.S.C. § 113(b) (Secretary of Defense is the “principal assistant to the President” in defense matters, whose authority is “[s]ubject to the direction of the President”); id. § 162(b) (“Unless otherwise directed by the President, the chain of command to a unified or specified combatant command runs—(1) from the President to the Secretary of Defense; and (2) from the Secretary of Defense to the commander of the combatant command.”). While in other contexts an injunction might run against an Executive Branch officer responsible for assistance to the President, see Franklin, 505 U.S. at 803, no such injunction is appropriate – at least absent the most extraordinary circumstances, which are plainly not present here – with respect to future military operations, including detention. As the D.C. Circuit has explained, it is “an abuse of * * * discretion to provide discretionary relief” that could affect military operations approved by “the President [and] the Secretary of 14
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I. The Balance of Harms and the Balance of Equities Warrant a Stay
The government has a strong likelihood of succeeding on appeal, but we first address the other three stay factors involving the balance of harms and the public interest because the order issued by the district court is specifically addressed to, and
potentially disruptive of, ongoing wartime operations. The district court’s
injunction threatens significant institutional and practical harms for national security that make a stay pending appeal an imperative.
For the reasons stated above, it is a powerful factor against equitable relief that the relief granted, through ex ante judicial orders to the President and Secretary
of Defense, respecting the conduct of military operations, invades the President’s
power as Commander in Chief with respect to matters authorized by Congress.
Making matters worse, the district court did not simply provide relief to the
plaintiffs before it, but the court inexplicably enjoined application of Section
1021(b)(2) “in any manner, as to any person.” Order at 111-12 (emphasis
added).
The worldwide injunction places an entirely unjustified and harmful burden
on the conduct of military operations during an active military conflict. Indeed,
the court magnified the scope of this fundamental error by inviting motions for
Defense.” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (Scalia, J.). The injunction therefore strikes at the heart of authority conferred upon the political Branches.
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contempt, perhaps even by non-party detainees, against the President and the
Secretary of Defense, with regard to not only Section 1021(b)(2), but also the
AUMF, which was not enjoined by the district court and was not challenged by plaintiffs in this suit. In doing so, the court wholly misinterpreted the AUMF – the Executive Branch’s central congressional authority for the ongoing armed conflict against Al Qaeda, the Taliban, and associated forces – contrary to interpretations by Congress itself, the D.C. Circuit, and two Presidents. See Order at 14 (“If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of ‘substantially or directly supporting’ associated forces, as set forth in § 1021(b)(2), and a contempt action is brought before this
Court, the Government will bear a heavy burden indeed”); Order at 112 (“[m]ilitary detention based on allegations of ‘substantially supporting’ or ‘directly supporting’ the Taliban, al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b)(2)”).
The President and the D.C. Circuit interpret the AUMF to provide detention authority over those who are “part of” or “substantially support” al-Qaeda, the
Taliban, or associated forces. See supra, pp. 5-7. As noted above, Congress’s express purpose in the NDAA was to affirm this interpretation. NDAA § 1021(d).
Although the district court states, on the one hand, that the permanent injunction against invoking Section 1021(b)(2) “removes no tools from the
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Government’s arsenal,” Order at 110, it also states, in the context of discussing
contempt, that the government would face “a heavy burden indeed” if it detains individuals because they are “‘substantially or directly supporting’ associated forces.” Order at 14.
In this respect, the permanent injunction entered by the court is vastly more troubling than the court’s prior preliminary injunction, and is the reason for this emergency motion for a stay. In entering a preliminary injunction, the district court assured the government that “preliminarily enjoining enforcement” of Section
1021(b)(2) “should not remove any enforcement tools from those the Government currently assumes are within its arsenal,” including preexisting detention authority under the AUMF. Memorandum Order at 5 (May 16, 2012). The court further clarified that it “agree[d] [with the government] that the [preliminary] injunction does not go beyond Section 1021(b)(2)” to limit AUMF authority. Memorandum
Order at 2 (June 6, 2012). While purporting to repeat the assurance that the government would have “tools” in its permanent injunction order, Order at 110, the district court then issued its injunctive command in the same sentence in which it announced its narrow view of the AUMF. Order at 112. In that sentence the court expressly rejected the Executive’s long-standing interpretation of the government’s detention authority under the AUMF that had been endorsed by the courts and
Congress. Id. (“Military detention based on . . . ‘substantial[] support[]’ . . . is not
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encompassed within the AUMF and is enjoined by this order regarding §
1021(b)(2)”); see also id. at 14 (rejecting government’s interpretation of AUMF together with discussion of possible contempt sanctions).
By rejecting the government’s longstanding understanding of its AUMF authority, in a context in which deference to the Executive’s interpretation should be
at its zenith, the court has placed the military in a difficult and burdensome position
rife with confusion. The confusion engendered by this extraordinary ruling is
heightened by the court’s failure to issue its injunction in a separate injunctive
order.5
The court’s opinion thus appears to contemplate curtailing the U.S. military’s ability to continue to adhere to the Executive’s longstanding interpretation of the
AUMF, an interpretation approved by Congress, and it does so in a case that did not even challenge that authority. To be clear: the court’s opinion, and the invitation of contempt proceedings, may impact detention practices in areas of active hostilities.6
5 See Allen Bradley Co. v. Local Union No. 3, 164 F. 2d 71, 73 (2d Cir. 1947) (when no separate injunctive order issued, “separating the licit from the illicit seems a heavy task for [those] . . . against whom the court's command is directed”). 6 Were the contempt proceedings invited by the district court to be brought by military detainees at Guantanamo or in Afghanistan, such proceedings could evade various review limitations enacted by Congress, constitutional limitations on the writ of habeas corpus, and the directive of the Supreme Court in Boumediene v. Bush. See 553 U.S. 723, 795-96 (2008) (to “reduce administrative burdens on the Government,” a “legitimate objective,” detainee review petitions should be “hear[d]. . . [in] the United States District Court for the District of Columbia”); see Maqaleh v. Gates, 605 F. 3d 84, 99 (D.C. Cir. 2010) (no constitutional habeas 18
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Plainly, this unprecedented order threatens irreparable harm, both on the military and the public interest, and should not stand. It should be stayed pending final resolution of the government’s appeal.
The permanent injunction further causes irreparable harm and undermines the public interest through its invalidation of a federal statute as unconstitutional on its face. Section 1021(b)(2), “like all Acts of Congress, * * * is presumptively constitutional” and “[a]s such, it ‘should remain in effect pending a final decision on the merits by [the Supreme] Court.’” Turner Broadcasting System, Inc. v.
F.C.C., 507 U.S. 1301, 1301 (1993) (Rehnquist, J., in chambers); Maryland v.
King, No. 12A48, 2012 WL 3064878, at *2 (Roberts, C.J., in chambers) (“‘[a]ny
time a State is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable injury’”) (quoting New
Motor Vehicle Bd. Of California v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)
(Rehnquist, J., in chambers)); see Heart of Atlanta Motel, Inc. v. United States, 85
S. Ct. 1, 2 (1964) (Black, J., in chambers). The “‘presumption of constitutionality
which attaches to every Act of Congress . . . [is] an equity to be considered in favor
of [the government] in balancing hardships.’” United States v. Comstock, No.
08A863 (Apr. 3, 2009) (Roberts, C.J., in chambers) (quoting Walters v. National
jurisdiction to hear habeas petitions filed by detainees in Afghanistan); 28 U.S.C. § 2241(e)(2) (no federal court jurisdiction to hear actions other than habeas proceedings by detainees determined to be enemy combatants or awaiting such a determination). 19
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Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, in chambers)). Absent a stay, an injunction against the military’s reliance on a statutory authorization of detention as an aspect of the use of military force harms these democratic interests, because the policy of Congress “is in itself a declaration of the public interest.” Virginian Ry. Co. v. Sys. Fed=n No. 40, 300 U.S. 515, 552
(1937).
Further, a stay will not harm plaintiffs. For reasons discussed further below, the plaintiffs have suffered no injury due to Section 1021(b)(2), and the government made clear on the record that the activities described by plaintiffs could not subject them to military detention. Therefore, plaintiffs not only lack standing, but also will not be harmed by a stay. The plaintiffs thus can present no equities at all to outweigh the competing interests of the government and the public. The balance of the harms, and the public interest, therefore call for the issuance of a stay pending appeal.
II. The Government Is Likely to Prevail on the Merits.
The government is highly likely to prevail on the merits of this appeal for at least three reasons. First, plaintiffs lack standing. Second, facial invalidation of
Section 1021(b)(2) was unwarranted under either a due process or First Amendment theory. Third, equitable relief is not appropriate here, and the injunction is overbroad. Standing alone, each of these errors provides an adequate basis for a
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stay and reversal. The combination of errors makes all the more clear the
government’s likelihood of success on the merits and the need to enter a stay of the injunction now.
As an initial matter, the district court analyzed the legal issues posed by this
case based on a profound misunderstanding of the principles of statutory
interpretation, military detention, and the laws of war, and without adequate
attention to the analysis by the D.C. Circuit, which has developed particular
experience in the past decade in these areas.
First, the court believed that the AUMF applies only to individuals directly
involved in the September 11th attacks. Order at 45 (“AUMF does not encompass
detention for individuals other than those directly linked to the events of September
11, 2001”). But the AUMF by its terms, and of necessity, authorizes all “necessary
and appropriate” military force against “those . . . organizations [the President]
determines planned, authorized, or aided the terrorist attacks,” AUMF § 2(a)
(emphasis added), including, of course, al-Qaeda. It therefore applies to
individuals or forces that have a sufficient tie to al-Qaeda or the Taliban, whether or
not the individuals were themselves directly linked to the events of September 11,
2001. The standards developed by two Presidents, embraced by the Supreme Court
in Hamdi, validated by the D.C. Circuit, and affirmed by Congress in NDAA §
1021(b)(2), all involve determining whether a person or force is sufficiently tied to
21
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al-Qaeda, which operates clandestinely, to be a proper subject of military force, including military detention. See, e.g., Salahi v. Obama, 625 F.3d 745, 751-52
(D.C. Cir. 2010). These standards do not – and could not – restrict the scope of
detention to those personally responsible for the attacks on September 11, 2001.
Second, the district court fundamentally erred in reasoning that § 1021(b)(2)’s
terms are impermissibly ambiguous. An Act of Congress such as the AUMF is
addressed to the President in the exercise of war powers; it is not a statute regulating
private conduct. A Congressional authorization for the use of force, such as the
AUMF or a declaration of war, authorizes the use of necessary force to address an
existing state of armed conflict or an identified threat.7 Traditionally, war powers are authorized by Congress in the most general terms, see supra n.7, without the type of specificity the district court apparently believed necessary. Those very concise acts implicate a regime of other legal authorities and standards, including the international laws of war, that inform the exercise of war powers. In the present case, the laws of war inform the interpretation of the AUMF and NDAA, such that they apply to “those persons whose relationship to al-Qaida or the Taliban would, in
7 See, e.g., Auth. for Use of Military Force Against Iraq Res. of 2002, Pub. L. No. 107-243, 116 Stat. 1498; Authorization for Use of Military Force Against Iraq Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991); Joint Res. of Aug. 10, 1964, Pub. L. No. 88-408, 78 Stat. 384 (Vietnam); Joint Res. of Dec. 8, 1941, ch. 561, 55 Stat. 795 (Japan); Joint Res. of Apr. 6, 1917, ch. 1, 40 Stat. 1 (Germany); Act of Apr. 25, 1898, ch. 189, 30 Stat. 364 (Spain); Act of May 13, 1846, ch. 16, 9 Stat. 9 (Mexico); Act of June 18, 1812, ch. 102, 2 Stat. 755 (Britain). 22
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appropriately analogous circumstances in a traditional armed conflict, render them detainable.” March 2009 Memo. at 1; see NDAA § 1021(a) (detentions authorized
“under the laws of war”). The district court failed to recognize this key to
understanding the AUMF and the NDAA.
Third, the court mistakenly believed that the government’s invocation of the
laws of war to “inform” its interpretation of the AUMF somehow served to expand
Presidential authority, and that this expansion was “rejected” by the D.C. Circuit in
Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010). Order at 39-40, 42. In
fact, the question before the D.C. Circuit was the converse – whether the laws of war
limited the President’s AUMF authority, and the D.C. Circuit panel in that case rejected the notion that the laws of war constrain the President’s authority.
Al-Bihani, 590 F. 3d at 872. In other words, the D.C. Circuit panel in Al-Bihani
concluded that the laws of war could not be invoked to narrow the scope of
detention authority conferred by the AUMF. The opinion cannot plausibly be read
to hold, or even suggest, that the detention of substantial supporters is not authorized
under the AUMF.8
These overarching errors just discussed reinforce the conclusion that the
8 A majority of the judges responding to a petition for rehearing en banc in Al-Bihani then issued a statement leaving resolution of that question for a future case because the “panel's discussion of that question is not necessary to the disposition of the merits.” Al-Bihani v. Obama, 619 F. 3d 1, 1 (2010) (statement of seven judges on denial of en banc review). 23
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district court further erred in numerous ways that demonstrate that the government is
very likely to succeed on the merits of the appeal.
A. Plaintiffs Lack Standing. The district court entered this extraordinary
and fundamentally flawed order in a context where there was not even a party before
it with standing. Section 1021(b)(2) has not injured the plaintiffs, and there is no
imminent injury to be redressed by the court’s order striking down the statute. See
Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
To establish standing, a “plaintiff must have suffered an injury in fact--an
invasion of a legally protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). A court’s standing inquiry must be
“especially rigorous when,” as here, “reaching the merits of the dispute would force
[a court] to decide whether an action taken by [another] branch[] of the federal
Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20 (1997).
An “[a]bstract injury,” Lyons, 461 U.S. at 101, and “[a]llegations of possible
future injury” that enter “the area of speculation and conjecture,” “do not satisfy
the[se] requirements,” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). Rather,
“[a] threatened injury must be certainly impending to constitute injury in fact.” Id.
(quotation marks omitted). Even in a case involving a statute – unlike the AUMF or
Section 1021(b)(2), see infra pp. 30-32 – that directly regulates private conduct by
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imposing penalties for engaging in statutorily proscribed acts, plaintiffs who claim a constitutional right to take the forbidden action must demonstrate a sufficiently
“credible threat of [enforcement].” HLP, 130 S. Ct. at 2717. And when plaintiffs invoke the harm of “self-censorship” in challenging such a statute that regulates private conduct, this Court has required at least “an actual and well-founded fear that the [statute] will be enforced against [them].” Vt. Right to Life Comm. v. Sorrell,
221 F.3d 376, 382 (2d Cir. 2000).9
The primary injury accepted by the district court as sufficient to support standing was the prospect that plaintiffs would be detained under Section 1021(b)(2) based upon their journalism and public advocacy. See Order at 19-20, 23-24, 26,
27-28. The district court’s first error in analyzing this standing claim was to ignore a key provision of the NDAA. The NDAA explicitly and unambiguously states that the challenged provision, Section 1021(b)(2), does not affect citizens or people arrested in the United States. See NDAA § 1021(e) (NDAA § 1021 does not “affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States). The President has further made clear that he “will not authorize the indefinite military detention without trial of American citizens.”
9 The United States disagrees with this Court’s view that a self-imposed chill based on a reasonable fear of enforcement is sufficient, Amnesty Int’l USA v. Clapper, 638 F.3d 118, 133-135, 137-138 (2d Cir. 2011), cert. granted, 132 S. Ct. 2431 (2012), but recognizes that panels of this Court are currently bound by that precedent. 25
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Statement by Pres. Obama, 2011 U.S.C.C.A.N. at S12.
Thus, the only plaintiffs NDAA § 1021(b)(2) might impact are noncitizens who are outside of the United States. Indeed, the non-citizen plaintiffs in this case do not even claim any substantial connection to the United States. They are not in a position to invoke due process vagueness principles or the First Amendment to challenge under the U.S. Constitution actions of the United States government – especially to enjoin the President and Secretary of Defense during an ongoing armed conflict. See Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) (due process);
United States v. Verdugo-Urquidez, 494 US 259, 265 (1990) (citing United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904), for the proposition that an
“[e]xcludable alien is not entitled to First Amendment rights”); Klendienst v.
Mandel, 408 U.S. 753, 762 (1972) (First Amendment).
Even putting aside this fundamental threshold flaw in the district court’s standing analysis, the claimed fears of detention, as found by the district court, are woefully inadequate to establish a “credible,” HLP, 130 S. Ct. at 2717, “well founded,” Vt. Right to Life Comm., 221 F.3d at 382, or in any way reasonable fear of detention under Section 1021(b)(2). Some of the findings do not show any real fear of enforcement or establish the plaintiffs changed their behavior to allay such fears.
Order at 20 (Hedges “anticipated” changing activities); id. at 26 (Wargalla
“considered” not inviting group to conference); id. at 27 (Jonsdottir “concerned”
26
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about her involvement with WikiLeaks). The remaining claimed fears relate to
activities that are so common – and so obviously not the subject of the war against al-Qaeda, the Taliban, and associated forces – that a fear of detention based on them
would be wholly unreasonable. Prelim. Inj. Order at 22 (O’Brien concerned about publishing articles critical of Guantanamo); id. at 23 (O’Brien concerned about similarities between “intelligence collection” and journalism); id. at 17 (Hedges concerned about reporting on terrorist groups). These fears are not objectively reasonable. See Lyons, 461 U.S. at 107 n.8 (subjective fears do not establish “the reality of the threat of injury”); Laird, 408 U.S. at 13-14.
The district court largely based its finding of standing on its dissatisfaction with the government’s assurance that the NDAA does not reach the conduct in which plaintiffs say they want to engage. See Order at 29-30. Standing, however, must be established by plaintiffs. See Cacchillo v. Insmed, Inc., 638 F.3d 401, 404
(2d Cir. 2011). In any event, the government considered each of the plaintiffs’ personal circumstances and represented to the district court on the record that plaintiffs could not be subject to detention as a matter of law, under either the AUMF or the NDAA, based on their stated activities. See Order at 29-30. Those
representations conclusively rebut plaintiffs’ claims that they reasonably fear
detention.
But even apart from those representations, plaintiffs’ stated fears, for three
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reasons, are not objectively reasonable.
First, the AUMF detention authority had been in force for more than ten years prior to the enactment of Section 1021(b)(2). During that time none of the plaintiffs were threatened with detention and none allege that they feared being detained.
Nor was there evidence of any detentions based upon independent journalism or
advocacy.10 The AUMF has been interpreted by two Presidents for more than eight years to authorize detention of those who are part of or substantially support al-Qaeda, the Taliban, or associated forces – including the very two elements,
“substantial support” and “associated forces,” that are challenged here. See Parhat v. Gates, 532 F.3d 834, 837-38 (D.C. Cir. 2008) (describing 2004 CSRT definition);
March 2009 Memo. at 2 (“substantially supported” and “associated forces”). That interpretation has been upheld by the D.C. Circuit, see, e.g., Al-Bihani, 590 F.3d at
872, and affirmed by Congress. NDAA § 1021(b)(2). Thus, irrespective of the district court’s view as to the proper scope of the AUMF – and irrespective of the court’s faulty theory that it is narrower than Section 1021(b)(2) of the NDAA – there is no doubt that the Executive Branch has interpreted the AUMF to include a
“substantial support” and “associated forces” component.
Second, the district court’s rationale for rejecting the relevance of this
10 The Executive previously used a “support” definition that is broader than that adopted by the Executive in March 2009 and affirmed by Congress in Section 1021(b)(2) of the NDAA, yet it also did not result in plaintiffs, or others in their position, being detained or threatened with detention. 28
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historical understanding is seriously mistaken. Section 1021(b)(2) of the NDAA expressly codified the President’s already existing interpretation of the AUMF, as upheld by the D.C. Circuit, and enactment of Section 1021(b)(2) therefore did not expand the scope of detention authority in any substantive respect. Congress specified, in the statutory text itself, that the statutory definition “affirms” the
AUMF detention authority and is not “intended to limit or expand the authority of the President or the scope of the [AUMF].” NDAA § 1021(d); see Statement by
Pres. Barack Obama upon Signing H.R. 1540, 2011 U.S.C.C.A.N. S11, S12 (Dec.
31, 2011) (provision “breaks no new ground and is unnecessary” because the
“authority it describes was included in the 2001 AUMF, as recognized by the
Supreme Court and confirmed through lower court decisions since then”). The
district court clearly erred in declining to defer to the Executive’s interpretation and
a settled body of law by the appellate court that has been accorded particular
responsibility and has considerable expertise in construing the AUMF. The reality is that plaintiffs face no risk of detention now, just as they faced no risk of detention under the AUMF for the last 11years.
Third, contrary to the district court’s misguided view of the role of the law of war, in March 2009 the government interpreted the AUMF as informed by law-of-war principles to determine the scope of AUMF authority, not to expand it.
Indeed, the standard adopted by Congress was based on the standard upheld in
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Hamdi as comporting with the laws of war. See 542 U.S. at 518-19 (authority to detain those who are “‘part of or supporting forces hostile to the United States or coalition partners in Afghanistan’ and ‘engaged in an armed conflict against the
United States’” is “so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the
President to use”). The laws of war inform the interpretation of the AUMF and
NDAA and therefore the detention authority applies to “those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional armed conflict, render them detainable.” March 2009
Memo. at 1; see NDAA § 1021(a) (detentions authorized “under the laws of war”).
While the district court reasoned that the laws of war are “vague” and support
plaintiffs’ general fear of being subject to detention, Order at 38, this contention is
without merit. Those laws of war have been developed over centuries, and they do
not support the plaintiffs’ claimed fear that they will be detained based on their
independent journalism or public advocacy. March 2009 Mem. at 1 (“laws of war
include a series of prohibitions and obligations, which have developed over time and
have periodically been codified in treaties such as the Geneva Conventions or
become customary international law”). Indeed, as explained, the government
advised the district court that the plaintiffs’ stated activities would not subject them
to detention as a matter of law.
30
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Plainly, the district court erred in holding that plaintiffs have standing to seek a worldwide injunction regarding the military’s detention powers under Section
1021(b)(2). But even if plaintiffs were somehow found to satisfy the requirements of Article III, any likelihood of harm is so attenuated that it could not remotely outweigh the profound equities of the government and public against recognizing a cause of action for equitable relief in these circumstances – even assuming such an action could ever be brought to enjoin the President and Secretary of Defense in this context.
B. NDAA § 1021(b)(2) is Constitutional. The government is also likely to prevail on the merits because NDAA § 1021(b)(2) is constitutional and it was error to facially invalidate it under the Due Process and Free Speech Clauses.
1. As an initial matter, the asserted constitutional rights must be viewed in the context of a military force authorization designed not to regulate private conduct through the imposition of penalties, but to authorize and enable wartime operations abroad in an active military conflict. There is no doubt that in that context,
Congress has great leeway to authorize force generally. Our constitutional
structure then provides that if that force were to be exercised in a way that impinges on a constitutional liberty, the situation will be addressed not through ex ante judicial orders directing the conduct of military operations abroad, but through appropriate, tailored remedies as applied to the specific circumstances. Indeed,
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historically, as we have explained, force authorizations are written in general terms, and would never properly be held to violate constitutional protections on their face because they granted authority in general terms or did not sufficiently carve out First
Amendment protected speech. See, e.g., Joint Res. of Dec. 8, 1941, ch. 561, 55
Stat. 795 (Japan) (“The President is hereby authorized and directed to employ the
entire naval and military forces of the United States and the resources of the
Government to carry on war against the Imperial Government of Japan; and, to bring
the conflict to a successful termination”). The notion that a force authorization like
NDAA § 1021(b)(2) – which is more specific and therefore imposes more
constraints on the President than historical force authorizations – confronts a greater
risk of invalidation because Congress imposed those constraints is counterintuitive
and represents a seriously flawed importation of legal principles governing
challenges to criminal statutes to a context in which they were not designed to
govern and are singularly out of place. Against this background, a statute like
Section 1021(b)(2) cannot be challenged on ordinary due process vagueness
grounds.
The district court’s analysis of plaintiffs’ First Amendment challenge is
wrong for similar reasons. And more specifically, Section 1021 is not a
content-based restriction on speech. Indeed, it does not even mention any form of
expression or even regulate private, primary conduct. It is a statute that operates as
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a grant of general war powers. The AUMF authorized the President to take action against persons with the requisite ties to al Qaeda, the Taliban, and associated forces,
and Section 1021affirmed that authority; neither statute is directed to speech as such,
and cannot be treated in the same manner as a criminal statute that may reach certain
expressive activity. See Virginia v. Hicks, 539 U.S. 113, 124 (2003) (“[r]arely, if
ever, will an overbreadth challenge succeed against a law or regulation that is not
specifically addressed to speech or to conduct necessarily associated with speech”).
Moreover, for the reasons we explained above, courts generally lack authority
to enjoin the President in carrying out official duties. See supra at pp. 12-14.
Instead, with respect to executive detention, the Constitution itself creates the
procedure for resolving challenges to Executive detention – namely, habeas corpus
review – and in that manner accommodates the exercise of war powers with
individual liberties. See Hamdi, 542 U.S. at 524 (habeas is the “process
constitutionally due to a citizen who disputes” the validity of military detention).
The claims brought here, seeking ex ante judicial direction to the President and
Secretary of Defense regarding wartime operations, should not have been
entertained by the district court. See, e.g., Aulaqi v. Obama, 727 F. Supp. 2d 1,
47-52 (D.D.C. 2010) (court would not consider request to enjoin military operations
“[b]ecause decision-making in the realm of military and foreign affairs is textually committed to the political branches” and “courts are functionally ill-equipped to
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make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff's claims”); cf. Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
2. General principles of constitutional analysis, even apart from those applicable in the context of military force authorizations, further demonstrate that the government is likely to succeed on the merits in this case.
“Facial challenges are disfavored” because they “often rest on speculation” and “run contrary to the fundamental principle of judicial restraint that courts should
[not] anticipate a question of constitutional law in advance of the necessity of deciding it.” Washington State Grange v. Washington State Republican Party, 552
U.S. 442, 450 (2008). Accordingly, “a plaintiff can only succeed in a facial challenge by establishing . . . that the law is unconstitutional in all of its applications.” Id. at 449. “[A] facial challenge must fail where the statute has a plainly legitimate sweep.” Id.
With respect to due process, a facial challenge of vagueness cannot succeed when the statute has a “core” that is an “imprecise but comprehensible normative standard.” Smith v. Goguen, 415 U.S. 566, 578 (1974). Here, although Section
1021(b)(2) is not amenable to a vagueness challenge for the reasons stated above, even if it were, the terms challenged by plaintiffs are not impermissibly vague.
They are informed by the laws of war, which are expressly referenced in the NDAA, the President’s interpretation, and D.C. Circuit precedent. See March 2009 Memo.
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at 2 (substantial support does not include those who provide “unwitting or insignificant support” to al-Qaeda); see also Khan v. Obama, 655 F.3d 20, 32-33
(D.C. Cir. 2011) (applying “associated force” definition to a group that “played an important and deliberate role in supporting continued attacks against coalition and
Afghan forces throughout 2002”); Geneva Convention III, Art. 4(a)(4)
(contemplating lawful detention of certain people who accompany military forces).
Similarly, with respect to the First Amendment, when “conduct” rather than
“‘pure speech’” is at issue, “[a]pplications of the [challenged] policy that violate the
First Amendment . . . [must] be remedied through as-applied litigation.” Virginia v.
Hicks, 539 U.S. 113, 124 (2003). That rule itself should have been fatal to
plaintiffs’ claims. It is obviously not “pure speech” to be part of, or substantially
support, al-Qaeda, and there is no First Amendment protection for “directly
support[ing] . . . hostilities in aid of enemy forces.” In any event, even if Section
1021(b)(2) were content-based, a First Amendment overbreadth challenge would be
viable only if the “law’s application to protected speech [were] ‘substantial,’ not
only in an absolute sense, but also relative to the scope of the law’s plainly legitimate
applications.” Hicks, 539 U.S. at 119-20. Plaintiffs’ facial challenge to Section
1021(b)(2) of the NDAA must fail under these precedents as well because, contrary
to the district court’s reasoning, Order at 86-97, the statute has a plainly legitimate
sweep to individuals who in no sense are engaging in expressive activities (as indeed
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the district court itself recognized in its preliminary injunction order, May 16 Order at 47). Moreover, as explained above, the NDAA’s effect runs only to aliens
abroad. By it terms, it does not “affect existing law or authorities relating to the
detention of United States citizens, lawful resident aliens of the United States, or any
other persons who are captured or arrested in the United States.” NDAA § 1021(e);
see supra, p. 25.
C. Worldwide Injunction Was Improper. Finally the district court
committed reversible error in issuing an expansive, worldwide injunction, not
limited to the handful of identified plaintiffs here. As an initial matter, because this
case involved the President’s use of military force abroad in carrying out the war
against al-Qaeda, the Taliban, and associated forces, the district court should not
have entertained an action for injunctive relief. Cf. Munaf, 553 U.S. at 700
(equitable habeas relief should not be granted in case involving “detainees . . .
captured by our Armed Forces” in “an active theater of combat” because it would
amount to an “unwarranted judicial intrusion into the Executive's ability to conduct
military operations abroad”).
Further, it is well established that when a party challenges the application of a
statute, the court cannot properly enjoin the government with respect to nonparties
on a nationwide, let alone worldwide, basis. See Monsanto Co. v. Geertson Seed
Farms, 130 S. Ct. 2743, 16 2760 (2010) (narrowing injunction in part because the
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plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”); Doran v. Salem Inn, Inc., 422
U.S. 922, 931 (1975) (noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”). Additionally, “injunctive relief
[should] be no broader than necessary to cure the effects of the harm caused.”
Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 750 (2d Cir.1994); Patsy's Italian
Restaurant, Inc. v. Banas, 658 F.3d 254, 272 (2d Cir. 2011).
Both these principles were violated by the district court order. The worldwide injunction, coupled with the threat of contempt proceedings, effectively attempts to enable one district court to prevent the government from defending the constitutionality of the law in any other court in any other circumstance, and thus interferes with the development of the law in other circuits – a particularly acute concern here given that other courts have applied and upheld the detention authority enjoined by the district court. See Dep’t of Defense v. Meinhold, 510 U.S. 939
(1993) (issuing a stay pending appeal of the portion of an injunction that “grant[ed] relief to persons other than” the named plaintiff); United States v. Mendoza, 464
U.S. 154, 159 (1984) (“the Government is not in a position identical to that of a private litigant, both because of the geographical breadth of government litigation and also, most importantly, the nature of the issues the government litigates”). This
37
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is particularly magnified here given the impact of the injunction and threatened contempt proceedings on national security and the conduct of military operations abroad during wartime, as we have explained above.
In sum, the injunction is improper and it, along with the accompanying threat
of contempt proceedings, interferes with active military operations and was entered
in a law suit where the plaintiffs suffer no harm. The district court’s order should
be promptly stayed pending final resolution of the government’s appeal.
CONCLUSION
For the foregoing reasons, the Court should stay the district court’s permanent
injunction entered on September 12, 2012, pending final resolution of the
government’s appeal, and should grant an immediate administrative stay pending its
consideration of this motion.
Respectfully submitted,
PREET BHARARA STUART F. DELERY United States Attorney Acting Assistant Attorney General
BENJAMIN H. TORRANCE BETH S. BRINKMANN CHRISTOPHER B. HARWOOD Deputy Assistant Attorney General Assistant United States Attorneys ROBERT M. LOEB JEH CHARLES JOHNSON (202) 514-4332 General Counsel AUGUST E. FLENTJE Department of Defense (202) 514-3309 Attorneys, Appellate Staff Civil Division, Room 3613 Department of Justice 950 Pennsylvania Ave., NW 38
Case: 12-3644 Document: 12-1 Page: 41 09/17/2012 721184 42
Washington, D.C. 20530
SEPTEMBER 2012
39
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CERTIFICATE OF SERVICE
I hereby certify that on this 17the day of September 2012, I caused this motion to be filed with the Court electronically by CM/ECF. I certify that the following counsel in this case who is a registered CM/ECF user will be served by the appellate
CM/ECF system:
Bruce Ira Afran 10 Braeburn Drive Princeton, NJ 08540
/s/ August E. Flentje August E. Flentje Attorney for Defendants-Appellants
Case:Case 12-3644 1:12-cv-00331-KBF Document: 12-2Document Page: 61 1 Filed 09/17/2012 09/12/12 Page 721184 1 of 112 112 USDC SDNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: ______SOUTHERN DISTRICT OF NEW YORK DATE FILED: September 12, 2012 ------X : CHRISTOPHER HEDGES, DANIEL ELLSBERG, : JENNIFER BOLEN, NOAM CHOMSKY, ALEXA : O’BRIEN, US DAY OF RAGE, KAI WARGALLA, : 12 Civ. 331 (KBF) HON. BRIGITTA JONSDOTTIR M.P., : : OPINION AND ORDER Plaintiffs, : : -v- : : BARAK OBAMA, individually and as : representative of the UNITED STATES OF : AMERICA; LEON PANETTA, individually : and in his capacity as the executive : and representative of the DEPARTMENT : OF DEFENSE, JOHN MCCAIN, JOHN BOEHNER, : HARRY REID, NANCY PELOSI, MITCH : MCCONNELL, ERIC CANTOR as : representatives of the UNITED STATES : OF AMERICA, : : Defendants. : ------X
KATHERINE B. FORREST, District Judge:
On May 16, 2012, this Court preliminarily enjoined
enforcement of § 1021(b) of the National Defense Authorization
Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298
(Dec. 31, 2011)(“the NDAA”). See Hedges v. Obama, No. 12 Civ.
331, 2012 WL 1721124 (S.D.N.Y. May 16, 2012) (order granting
preliminary injunction) (the “May 16 Opinion”). On June 6,
2012, in response to a footnote contained in the Government’s1
1 “The Government” as used herein refers to those defendants in this action that are properly before the Court. See Hedges, 2012 WL 1721124, at *12.
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motion for reconsideration suggesting an unduly narrow interpretation of that ruling, this Court issued a summary order stating that the injunction was intended to--and did apply to-- any and all enforcement of § 1021(b)(2), not simply to plaintiffs in this lawsuit.2 See Hedges v. Obama, No. 12 Civ.
331, 2012 WL 2044565, at *1 (S.D.N.Y. June 6, 2012) (summary
order). On June 8, 2012, the parties agreed that neither side
would seek to add to the evidentiary record presented in support
of the preliminary injunction and that they would proceed
directly to a hearing on plaintiffs’ request for a permanent
injunction. (See Order (June 8, 2012) (Dkt. No. 43) at 1.)
Accordingly, the parties submitted additional legal memoranda
but no additional factual materials.
On August 7, 2012, the Court held oral argument on the
request for a permanent injunction (the “August hearing”). At
the commencement of that argument, the Court confirmed that the
parties agreed that the evidentiary record developed at the
March 29, 2012, preliminary injunction hearing (the “March
hearing”) would constitute the trial record for this matter.
Hr’g Tr. of Oral Argument on Permanent Inj., Aug. 7, 2012 (Dkt.
2 During a June 7, 2012, conference call with the Court, the parties were provided with the opportunity to seek a decision on the motion for reconsideration or to proceed directly to a hearing on a permanent injunction. The parties agreed to proceed directly to a permanent injunction. Accordingly, the Court denied the motion for reconsideration as moot. (See June 8 Order (Dkt. No. 43) at 1.)
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No. 59) (“Tr. II”) at 3. The Court bases its findings of fact on that record.
For the reasons set forth below, this Court grants plaintiffs’ motion and permanently enjoins enforcement of
§ 1021(b)(2) of the NDAA (referred to herein as “§ 1021(b)(2)”).
I. SUMMARY OF OPINION
Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the
First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).
At the March hearing, the Government was unable to provide this Court with any assurance that plaintiffs’ activities (about which the Government had known--and indeed about which the
Government had previously deposed those individuals) would not in fact subject plaintiffs to military detention pursuant to
§ 1021(b)(2). Following the March hearing (and the Court’s May
16 Opinion on the preliminary injunction), the Government fundamentally changed its position.
In its May 25, 2012, motion for reconsideration, the
Government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would
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not subject plaintiffs to military detention under § 1021. The
Government did not--and does not--generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under
§ 1021(b)(2). The First Amendment of the U.S. Constitution provides for greater protection: it prohibits Congress from passing any law abridging speech and associational rights. To the extent that § 1021(b)(2) purports to encompass protected
First Amendment activities, it is unconstitutionally overbroad.
A key question throughout these proceedings has been,
however, precisely what the statute means--what and whose activities it is meant to cover. That is no small question bandied about amongst lawyers and a judge steeped in arcane questions of constitutional law; it is a question of defining an individual’s core liberties. The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention--potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The
Constitution requires specificity--and that specificity is absent from § 1021(b)(2).
Understanding the scope of § 1021(b)(2) requires defining
key terms. At the March hearing, the Government was unable to
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provide definitions for those terms. The Government had prior notice of precisely which terms were at issue based upon allegations in the complaint, declarations, depositions, the briefing and oral argument. In particular, plaintiffs commenced this lawsuit asserting--and they continue to assert--that the phrases “associated forces,” “substantially supported,” and
“directly supported” all are vague. Indeed, even after this
Court’s May 16 Opinion in which the Court preliminarily found a likelihood of success on the merits of plaintiffs’ vagueness/due process challenge, the Government nevertheless did not provide particular definitions. Notably, the Government spent only one page of its 49-page memorandum in support of a final judgment denying a permanent injunction (the “pre-trial memorandum”) addressing the meaning of those terms. (See Gov’t’s Mem. of Law in Support of Final J. Denying a Permanent Inj. and Dismissing this Action (Dkt. No. 53) (“Gov’t Trial Mem.”).) The
Government’s terse arguments do not resolve the Court’s concerns. The statute’s vagueness falls short of what due process requires.
The Government presents a variety of arguments which, if accepted, would allow the Court to avoid answering the constitutional questions raised in this action. As discussed below, however, the Court rejects each.
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First, the Government argues that this Court should not permanently enjoin § 1021(b)(2) on the basis that plaintiffs lack standing. At the March hearing, plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer.
Hr’g Tr. of Oral Argument on Prelim. Inj., Mar. 29, 2012 (Dkt.
No. 34) (“Tr. I”) at 236, 239, 245.
Article III of the Constitution, allowing federal courts to entertain only actual cases and controversies, requires that a plaintiff have standing to pursue a claim. Plaintiffs here, then, must show that they have a reasonable fear that their actions could subject them to detention under § 1021(b)(2).3 The
Court recited the Government’s position--or lack thereof--in its
May 16 Opinion. Following that Opinion, the Government changed its position. The Government stated its “new” position in two different ways. First, it expressed its position rather broadly: “[T]he conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.” (Gov’t’s Mem. of Law in Support of
3 There are additional required elements for standing which the Court addresses below.
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its Mot. for Recons. (Dkt. No. 38) (“Recons. Mem.”) at 2.) Two pages later, the Government stated its full, qualified position:
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.
(Id. at 4 (emphases added) (footnote omitted).) The Government
reaffirmed that position in its pre-trial memorandum. (See
Gov’t Trial Mem. at 20.) Arguing that belatedly providing this
qualified statement eliminates plaintiffs’ standing
misunderstands controlling law: Standing is determined as of
the outset of a case.
The Government’s new position also ignores the posture in
which it affirmatively placed itself--and plaintiffs--as a
result of its shifting view. At the March hearing, plaintiffs
testified credibly that they were engaged in, and would continue
to engage in (without the threat of indefinite military
detention), activities they feared would subject them to
detention under § 1021. The Government had an opportunity, both
then, and at the depositions it took of each of the testifying
plaintiffs, to explore the nature of plaintiffs’ activities, and
to test whether plaintiffs’ fears were actual and reasonable.
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Given that opportunity, the Court must--and does--take seriously the Government’s position at the March hearing. In other words, the Government did not offer a position at the March hearing sufficient to rebut plaintiffs’ credible testimony as to their reasonable fear of detention under § 1021(b)(2) and thus, its newly espoused position cannot erase what it said previously.
Plaintiffs have standing.4
Second, the Government implicitly argues that its new
position renders this action moot.5 It does not. The Government
has explicitly stated that its position is applicable with
respect to only those activities to which the plaintiffs
testified at the March hearing. Thus, any protected First
Amendment activities in which plaintiffs have engaged since then
might subject them to indefinite military detention. The
plaintiffs--writers, journalists, activists--testified credibly
that they are continuing, and would continue without the fear of
detention, these activities. An actual case or controversy
remains.
4 The Government’s belated change of position--i.e., that it would not use § 1021(b)(2) as to these plaintiffs, for the specific activities described at the hearing, if done independently, if described accurately, and without more--must also be taken seriously. This last position raises additional concerns, and requires additional definitional structure discussed further below.
5 Although the Government does not specifically refer to its challenge as one of “mootness” (see Gov’t Trial Mem. at 23-24), as a matter of law the argument that its new litigation position “eliminates plaintiffs’ standing” (id. at 24) amounts to a mootness challenge.
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Third, the Government argues that even in the absence of
its proffered assurance, plaintiffs cannot have standing since
§ 1021 is simply a reaffirmation of the 2001 Authorization for
Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)
(the “AUMF”)--and since plaintiffs were never detained under the
AUMF in the ten years since its passage, they cannot have a
reasonable fear that they will be detained under § 1021(b)(2)
now. The Court rejects that argument.
The AUMF and § 1021 have significant differences, discussed
below. Those differences can be traced to the legislative
history and case law surrounding the AUMF. Section 1021 appears
to be a legislative attempt at an ex post facto “fix”: to
provide the President (in 2012) with broader detention authority
than was provided in the AUMF in 2001 and to try to ratify past
detentions which may have occurred under an overly-broad
interpretation of the AUMF. That attempt at a “fix” is obscured
by language in the new statute (e.g., “reaffirmation”) that makes it appear as if this broader detention authority had always been part of the original grant. It had not.
Based on what is known about the history of the executive
branch’s use of detention authority (via reported cases and
statements by the Government), sometime between September 18,
2001 (the date of the AUMF) and December 31, 2011 (the date of
the NDAA)--without congressional authorization--the executive
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branch unilaterally extended its interpretation of its military detention authority to a scope resembling what was passed into law as § 1021(b)(2). Detentions have been challenged via habeas petitions. Courts have warned the Government about the limits of congressional authorization for detention authority (with respect to the AUMF), and that the “laws of war”--to which the
Government has repeatedly referred in its opposition to the
Guantanamo habeas petitions as providing a basis for detention-- was not and should not be part of domestic law.
In March 2009, the Government presented its view of its detention authority under the AUMF--explicitly referring to that view as a “refinement” and limiting its application to then-current Guantanamo detainees. That position bears clear similarities to § 1021(b)(2). In contrast to those statements, in this proceeding the Government argues that its interpretation has always been consistent and has always included the various elements now found in § 1021(b)(2). Indeed the Government argues that no future administration could interpret
§ 1021(b)(2) or the AUMF differently because the two are so clearly the same. That frankly makes no sense, particularly in light of the Government’s inability at the March and August hearings to define certain terms in--or the scope of--
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§ 1021(b)(2).6 Accordingly, the Government cannot point to a
lack of detention pursuant to the AUMF as eliminating the
reasonable basis for plaintiffs’ stated fears regarding
§ 1021(b)(2).
Fourth, the Government argues that even if plaintiffs have
standing, this Court should essentially “stay out of it”--that
is, exercise deference to the executive and legislative branches
and decline to rule on the statute’s constitutionality. In
particular, the Government argues that the fact that the statute
relates to military detention during a time of war both
justifies § 1021(b)(2) breadth and requires judicial deference.
The Court rejects that argument as well.
The Court is mindful of the extraordinary importance of the
Government’s efforts to safeguard the country from terrorism.
In light of the high stakes of those efforts as well as the
executive branch’s expertise, courts undoubtedly owe the
political branches a great deal of deference in the area of
national security. See Holder v. Humanitarian Law Project, 130
S. Ct. 2705, 2711 (2010). Moreover, these same considerations
counsel particular attention to the Court’s obligation to avoid
unnecessary constitutional questions in this context. Cf.
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
6 Put another way, one would reasonably assume that if the AUMF was interpreted consistently with the language of § 1021(b)(2), by 2012 the Government would be able to clearly define its terms and scope. It cannot.
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(Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”). Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. See, e.g., Ex parte Milligan, 72 U.S. (4 Wall.) 2, 125-26
(1866). Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.
And this Court gives appropriate and due deference to the executive and legislative branches--and understands the limits of its own (and their) role(s). But due deference does not eliminate the judicial obligation to rule on properly presented constitutional questions. Courts must safeguard core constitutional rights. A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language.
Although it is true that there are scattered cases--primarily decided during World War II--in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment (e.g., Korematsu v. United
States, 323 U.S. 214 (1944) (upholding the internment of
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Japanese Americans based on wartime security concerns)), or
referred to by current members of the Supreme Court (for
instance, Justice Scalia) as “wrong” (e.g., Ex parte Quirin, 317
U.S. 1 (1942) (allowing for the military detention and execution
of an American citizen detained on U.S. soil)). Presented, as
this Court is, with unavoidable constitutional questions, it
declines to step aside.
The Government also argues that, at most, the Court’s role
should be limited to a post-detention habeas review. See Tr. II at 118. That argument is without merit and, indeed, dangerous.
Habeas petitions (which take years to be resolved following initial detention) are reviewed under a “preponderance of the evidence” standard (versus the criminal standard of “beyond a reasonable doubt”) by a single judge in a civil proceeding, not
a jury of twelve citizens in a criminal proceeding which can
only return a guilty verdict if unanimous. If only habeas
review is available to those detained under § 1021(b)(2), even
U.S. citizens on U.S. soil, core constitutional rights available
in criminal matters would simply be eliminated. No court can
accept this proposition and adhere truthfully to its oath.
In conclusion, this Court preliminarily found that
plaintiffs showed a likelihood of success on the merits with
respect to their claims that § 1021(b)(2) is overbroad as well
as impermissibly vague. The Government has presented neither
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evidence nor persuasive legal argument that changes the Court’s
preliminary rulings. The case law this Court cited in its May
16 Opinion remains good law. The factual record and case law
now presents this Court with a matter ready for final
resolution. The Court finds that § 1021(b)(2) is facially
unconstitutional: it impermissibly impinges on guaranteed First
Amendment rights and lacks sufficient definitional structure and
protections to meet the requirements of due process.
At the August hearing, the Government stated that
preliminary enjoining § 1021(b)(2) had not altered its detention
practices in any way since in its view, the executive branch
maintains identical detention authority under the AUMF. See Tr.
II at 138. As set forth herein, however, that position is
unsupported by the AUMF itself, has been rejected by other
courts (including the Supreme Court), and is rejected by this
Court.
If, following issuance of this permanent injunctive relief,
the Government detains individuals under theories of
“substantially or directly supporting” associated forces, as set
forth in § 1021(b)(2), and a contempt action is brought before
this Court, the Government will bear a heavy burden indeed.7
7 It is clear, as discussed below, that the Military Commission Acts of 2006 and 2009, Pub. L. No. 109-366, 120 Stat. 2600 (2006); Pub. L. No. 111-84, 123 Stat. 2190 (2009) (collectively, the “MCA”) refer to proceedings for alien enemy belligerents who have substantially supported the Taliban, al-Qaeda, or
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II. FINDINGS OF FACT
Five plaintiffs provided evidentiary materials in support
of their positions in this action: Christopher Hedges, Alexa
O’Brien, Jennifer Ann Bolen, Kai Wargalla and the Honorable
Brigitta Jonsdottir.8 Plaintiffs Hedges, O’Brien, Wargalla and
Jonsdottir testified live at the March hearing.9 The Government
did not submit any evidence in support of its positions. It did
not call a single witness, submit a single declaration, or offer
a single document at any point during these proceedings.
The Court finds the testimony of each plaintiff credible.
With respect to the witnesses who testified live, the Court was
able to evaluate their demeanor and ask clarifying questions.
The Government cross-examined each of the witnesses who
testified live (having also previously deposed him or her).
None of the witnesses wavered in his or her testimony; each was
sincere and direct. Each provided specific and detailed
information regarding his or her writings, speech, and/or
associational activities that have been affected--and that he or
she asserts are continuing to be affected--by his or her fear of
associated forces. The MCA is a different statutory scheme altogether from the AUMF and § 1021; the MCA does not itself authorize detention.
8 “Plaintiffs,” as used in this Opinion, refers to the five plaintiffs that testified at the March preliminary injunction hearing. It does not include Daniel Ellsberg, Jennifer Bolen, or Noam Chomsky.
9 By agreement of the parties, Jonsdottir testified by declaration; the Government waived cross-examination. Her declaration was read into the record at the hearing by Naomi Wolf. Tr. I at 147-55.
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detention pursuant to § 1021(b)(2). The Court adopts the
factual findings set forth in its May 16, 2012 Opinion, see
Hedges, 2012 WL 1721124, at *6-15, and repeats here only those
facts necessary for context. The Court also supplements those
factual findings based on information from the March hearing and
admitted documentary evidence not recited in the May 16 Opinion.
The Court’s factual findings are as follows:
A. Christopher Hedges
Christopher Hedges has been a foreign correspondent and
journalist for more than 20 years. Tr. I at 156. During that
time, he has published numerous articles and books on topics
such as al-Qaeda, Mohammad Atta, and the Paris bombing plot; he
is a Pulitzer Prize winner. Id. at 157-58. His most recent
book was published in June 2012.10 He intends to continue to
work as a journalist. See, e.g., id. at 173.
Hedges’ writing and journalistic activities have taken him
to the Middle East, the Balkans, Africa, and Latin America. Id.
at 157. His work has involved interviewing al-Qaeda members who
were later detained. Id. at 158. He has reported on 17 groups
contained on a list of known terrorist organizations prepared by
the U.S. Department of State. (See Court Ex. 9 (Country Reports
10 Days of Destruction, Days of Revolt, co-authored by Hedges and Joe Sacco, was published after the March hearing. The Court takes judicial notice of that publication.
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on Terrorism, Report of the U.S. State Dep’t, Ch. 6 (“Terrorist
Groups”))(Aug. 2010) at 1.)
Among the groups on which Hedges has reported (most of which are on the State Department list of terrorist organizations) are: the Abu Nidal Organization, the al-Aqsa
Martyrs Brigade, the Armed Islamic Group, Al-Jihad, the Gama’a al-Islamiya, Hamas, Hizballah, Kahane Chai, the Kongra-Gel
(a/k/a “KGK” or “PKK”), the Mujahedin-e Khalq Organization
(“MEK”), the Palestine Liberation Front, the Palestine Islamic
Jihad, the Popular Front for the Liberation of Palestine
(including also the Central Command) (“PFLP”), al-Qaeda,
Revolutionary People’s Party/Front, and the Salafist Group for
Call and Combat. (Court Ex. 9 at 12); see also Tr. I at 169.
In his career as a journalist and writer, Hedges has spent time with members of those groups; he has interviewed their leadership as well as the rank-and-file. Tr. I at 170. In connection with his reporting on Hamas, Hedges has met with its leadership, stayed in their homes, and socialized with them.
Id. at 172. He testified that some of the organizations on which he has reported are considered to be in hostilities with coalition partners of the United States. Id. at 166, 169. The
PKK is only one example. Id. at 169. Other groups Hedges has covered, such as the PFLP, have carried out acts of terrorism against U.S. targets. Id. at 170.
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As part of his investigative work, he has been embedded with certain organizations on the State Department’s Terrorist
List. For instance, in connection with his coverage of the PKK, he travelled with PKK armed units in southeastern Turkey and northern Iraq. Id. He was with an armed unit of the PKK in northern Iraq when Turkish war planes attacked it. Id. at 171.
Hedges’s work has involved investigating, associating with and reporting on al-Qaeda. After September 11, 2001, he was based in Paris and covered al-Qaeda in all countries in Europe with the exception of Germany (he does not speak German, but does speak Spanish, French and Arabic). Id. at 157. He did
“reconstructs”: following terrorist attacks, he “would spend weeks on the ground piecing together everything that had gone into [the] attack and all of the movements of those who were involved in [the] attacks.” Id. at 157-58. He did a
“reconstruct” relating to Mohammad Atta, one of the participants in the attacks on September 11, 2001. Id. at 158. Hedges testified that he “retraced every step Mohammad Atta took.” Id.
Hedges covered al-Qaeda’s attempted bombing of the Paris
Embassy. Id. He also covered al-Qaeda’s suicide bombing attack on the synagogue in Djerba, Tunisia, as well as Richard Reed, an al-Qaeda member who attempted to use a shoe bomb to blow up an airplane. Id.
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Hedges has recently spoken at events in Belgium and France,
and could encounter people associated with groups that are
“hostile to the U.S. government.” Id. at 174.
Hedges testified that because he speaks a number of
languages (including, as stated, Arabic), he has been approached
by publications, such as Harper’s Magazine, the Nation and
others to return to the Middle East as a correspondent. Id. at
172-73. He testified that he has a realistic expectation that
his work will bring him back to the Middle East. Id. at 173.
Hedges testified that his work is known in the Middle East
and read widely there. Id. at 159. His works have appeared on
Islamic and jihadist websites. Id.
Hedges read news articles regarding § 1021 prior to its
implementation. Id. at 160. He testified that he has read
§ 1021 but does not understand the definition of certain terms
including “associated forces,” “engaged in hostilities,” or
“substantially supported.” Id. at 161-62. He testified that he has read the AUMF, that he understands it and that, in his view, it is not coextensive with § 1021. Id. at 164-65.
Hedges testified that his oral and written speech as well
as associational activities have been chilled by § 1021: he does
not understand what conduct is covered by § 1021(b)(2), but does
understand that the penalty of running afoul of it could be
indefinite military detention. See, e.g., id. at 174, 177, 186.
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He anticipated having to change his associational activities at speeches he was giving as a result of § 1021. Id. at 174.
Hedges testified that prior to the passage of § 1021, he never feared his activities could subject him to indefinite military detention by the United States. Id. at 206.
At the March hearing, the Court asked whether Hedges’ activities could subject him to detention under § 1021; the
Government stated that it was not prepared to address that question. Id. at 245. When asked a similar question at the
August hearing, five months later, the Government remained unwilling to state whether any of plaintiffs’ (including
Hedges’s) protected First Amendment future activities could subject him or her to detention under § 1021. Tr. II at 142.11
This Court finds that Hedges has a reasonable fear of detention pursuant to § 1021(b)(2).
B. Alexa O’Brien
Alexa O’Brien was the founder of U.S. Day of Rage and has also written numerous articles. Tr. I at 40-42. She identifies her career as a “content strategist.” Id. at 38.
O’Brien is also a contributor and editor of the news website, WL Central. Id. at 40-41. WL Central has a number of international news journalists who contribute content. Id. at
11 There is no evidence in the record that plaintiffs engage in any relevant activities other than those protected by the First Amendment.
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40. O’Brien has published more than 50 articles on WL Central
since January 2011. Id. at 41. She has published articles on
WL Central relating to WikiLeaks’s release of U.S. State
Department cables, the Joint Task Force memoranda for Guantanamo
Bay, and the revolutions in Egypt, Bahrain, Yemen, and Iran.
Id. She has also has written blogs relating to those events,
articles on the legal proceedings for Bradley Manning and Julian
Assange relating to WikiLeaks, and has published a series of
articles based on interviews of individuals who have been
detained at Guantanamo Bay or who were prison guards there.
(Court Ex. 3 (series of published articles authored by
O’Brien)); Tr. I at 41.
O’Brien testified that in February 2012, she learned that
an individual employed by a private security firm had allegedly
been asked to tie U.S. Day of Rage to Islamic fundamentalist
movements. Tr. I at 43. She received a copy of an email which
indicated that there had been communications in this regard
dating back to August 2011. Id. The email exchange was located
on the WikiLeaks website and was between individuals named
Thomas Kopecky and Fred Burton. Id. at 45. Based on first-hand knowledge, O’Brien testified that she is aware that Burton is a former security official previously employed by the U.S. State
Department. Id. at 45-46.
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O’Brien testified credibly that she also received twitter
messages from a private security contractor called Provide
Security. Id. at 47. One of the messages indicated that U.S.
Day of Rage had been found on an Islamic jihadist website. Id.
at 48. The message stated: “Now you are really in over your
head with this. Muslims from an Afghanistan jihad site have
jumped in.”12
O’Brien also testified that in September 2011 she was
contacted by someone she knew to be a federal agent, but to whom
she guaranteed confidentiality of source. Id. at 52. She testified that that individual had seen a memorandum from the
Department of Homeland Security (“DHS”) addressed to law enforcement across the nation (a) regarding the fact that DHS planned to infiltrate U.S. Day of Rage and (b) linking U.S. Day of Rage to a loosely knit “organization,” called “Anonymous,” that O’Brien knew to be associated with cyber-terrorism. Id. at
51-54.13 O’Brien later met with a journalist who told her that
he had seen either the same memo to which the federal agent had
referred or one with similar content. Id. at 69. O’Brien
testified that in August 2011 she learned of an article
suggesting that information about U.S. Day of Rage had been
12 The messages that O’Brien received were marked as Court Exhibit 4, admitted to show the reasonableness of O’Brien’s fearful state of mind regarding being subject to § 1021, and not for the truth of the matter asserted.
13 The Government did not object to this testimony. See Tr. I at 51-54.
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posted on Shamuk and Al-Jihad, two al-Qaeda recruitment sites.
Id. at 59.
O’Brien testified that she read § 1021, but does not understand what certain of its terms mean and whether they would encompass her activities. Id. at 74. In particular, she pointed to the terms “associated forces” and “substantially support” as lacking definition. See id. She stated:
I think it’s best to use an example [of] someone like Sami Al-Hajj, who is a Sudanese Al Jazeera cameraman, who was later released from Guantanamo Bay and now works for Al Jazeera. Again, “substantially supported,” what does that mean? In a war on terror where intelligence collection and the information- sharing environment are competing with the press for collection of information, it’s very similar activities of collect[ing], talking with people, getting information. It’s very hard when Secretary Clinton talks about the information war that we are in to understand what “substantially support” means in relationship to journalists.
Id.
O’Brien testified that she knows people who have been or are subject to military detention and that she is concerned that
Section 1021 could subject her to military detention. Id. at
74-80. After reading § 1021(b)(2), she decided to withhold from publication several articles she had written due to her concern that they could subject her to detention under the statute. Id. at 72 (“Court: Are you saying that there is a causal relationship between the passage of [§ 1021] and your withholding both of these articles? The Witness: Absolutely.”).
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O’Brien testified that pursuant to a request made under the Freedom of Information Act, an organization called
TruthOut.org had obtained a memorandum from the Department of
Homeland Security, which states “National Cybersecurity and
Communications Integration Center Bulletin. Details on
‘Anonymous,’ upcoming U.S. operations 17 September 2011 Occupy
Wall Street, ‘U.S. Day of Rage.’” Id. at 109-10.14
At the March hearing, when the Government was specifically questioned by the Court regarding whether O’Brien’s activities could subject her to detention under § 1021(b)(2), the
Government stated it would not answer the question:
The Court: ... [A]re those articles [holding up Court Ex. 3] going to subject M. O’Brien to risk under § 1021? . . .
[Government]: Again, I’m not authorized to make specific representations as to particular people. I’m saying that “associated forces” cannot extend to groups that are not armed groups at all.
The Court: So we don’t know about the articles, it depends?
[Government]: Maybe they are an armed group.
Id. at 236.
At the August hearing, the Government stated that it could not represent one way or the other whether future activities by
14 The Court admitted the document obtained pursuant to that request under the general hearsay exception contained in Fed. R. Evid. 807 as having sufficient indicia of reliability. The Court invited counsel for the Government to notify the Court if, after the hearing, they determined that the document was not authentic. The Court has not received such a communication and therefore accepts the document as authentic. See Tr. I at 109-11.
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plaintiffs, including O’Brien, would subject them to detention under § 1021. See, e.g., Tr. II at 142.
This Court finds that O’Brien has a reasonable fear of detention pursuant to § 1021(b)(2).
C. Kai Wargalla
Kai Wargalla is an organizer and activist based in London.
Tr. I at 116. She is Deputy Director of the organization
“Revolution Truth,”15 and she also founded “Occupy London” and
“Justice for Assange UK.” Id. at 116-18.16
Revolution Truth engages in international speech activities accessible in the United States through a website that has forums at which individuals speak on various topics.17 See id. at 117, 124. Wargalla stated that she saw a bulletin in which the London Police listed the Occupy London group as among terrorist or extremist groups. Id. at 120-21.
Wargalla testified that she is also aware that several politicians have referred to WikiLeaks as a terrorist organization and that there is a grand jury hearing evidence with respect to activities by WikiLeaks. Id. at 139.
15 Revolution Truth is an organization that conducts panel discussions on a variety of topics including WikiLeaks. See Tr. I at 117; see also revolutiontruth.org. The Court can take judicial notice of the fact that content is available on a website; the Court does not refer to the website for the truth of any of its contents. See 23-34 94th St. Grocery Corp. v. New York City Bd. of Health, 685 F.3d 174, 183 n.7 (2d Cir. 2012) (taking judicial notice of the fact of content published on a website).
16 Justice for Assange is an organization whose efforts are dedicated to supporting Julian Assange, founder of WikiLeaks. See Justice4assange.com. 17 See revolutiontruth.org.
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Wargalla testified that she has read § 1021 and finds several of the statute’s terms concerning with respect to her activities. Id. at 121-22. She expressed concern regarding the definition of “covered persons” generally and the phrase
“substantially supported” specifically. Id. She testified that the phrase “substantially supported” “could mean anything really, from having someone on a panel discussion, from conducting campaigns . . ., to organizing rallies and demonstrations.” Id. at 131.
Wargalla testified that her concerns regarding the scope of
§ 1021 has already chilled her speech-related activities. She testified that § 1021 has led to changes in certain of the expressive and associational activities of Revolution Truth.
For instance, Revolution Truth has considered not inviting members of certain organizations to participate in its forums due to concerns regarding § 1021. Id. at 124-25. Wargalla identified Hamas as one organization Revolution Truth would likely not have participate in forums due to concerns about
§ 1021. Id. at 124-126.
At the August hearing, the Government stated that it could not represent that Wargalla’s future activities would not subject her to detention under § 1021. See, e.g., Tr. II at
142.
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This Court finds that Wargalla has a reasonable fear of
detention pursuant to § 1021(b)(2).
D. Hon. Brigitta Jonsdottir
The Honorable Brigitta Jonsdottir is a member of parliament
in Iceland. Tr. I at 147-48. She is an activist and a
spokesperson for a number of groups including WikiLeaks. Id. at
148. As part of her work in connection with WikiLeaks, she assisted in producing a film entitled “Collateral Murder,” released in 2010. Id. This film alleges that Americans and
others have committed war crimes in connection with their
participation in the war in Iraq. Id. at 149.
Jonsdottir stated that she is aware that several U.S.
politicians have classified WikiLeaks as a terrorist
organization. Id. at 149. She believes that Bradley Manning, associated with WikiLeaks, has been charged with aiding terrorists. Id. at 150. She has received a subpoena from a
U.S. grand jury for content from her Twitter account. Id. at
152.
She has organized activities opposing the war in Iraq. Id.
at 148. She has been given legal advice by members of Iceland’s
Ministry of Foreign Affairs that she should not travel to the
United States. Id. at 152-53.
Jonsdottir stated that she is concerned that her activities
with respect to WikiLeaks may subject her to detention under
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§ 1021--particularly because her work might be construed as giving “‘substantial support’ to ‘terrorists and/or associated forces.’” Id. at 154.
At the March hearing, the Court asked whether Jonsdottir’s activities could subject her to detention under § 1021. The
Government responded, “Again, I can’t make representations on specifics. I don’t know what she has been up to. I don’t know what is going on there.” Id. at 239.
At the August hearing, the Government stated that
Jonsdottir’s past activities as specifically set forth in her declaration would not subject her to detention under § 1021; however, the Government would not make representations regarding anything else that she had done or with respect to her future
First Amendment activities. See, e.g., Tr. II at 142.
This Court finds that Jonsdottir has a reasonable fear of detention pursuant to § 1021(b)(2).
E. The Government
The Government did not present any witnesses or seek to admit any documents in connection with the March hearing. The
Government did depose--and then cross-examine at the March hearing--those plaintiffs who testified live. The Court does not find that this cross-examination undermined any of the witness’ essential points.
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At the March hearing, the Government was unable to represent that the specific activities in which plaintiffs had engaged would not subject them to indefinite military detention under § 1021. See, e.g., Tr. I 223, 226, 229-30. The
Government changed its position several weeks later in a motion for reconsideration of the May 16 Opinion. In its memorandum submitted in support of that motion (which was subsequently denied as moot in light of the parties’ agreement to proceed directly to a hearing on a permanent injunction), the Government changed its position entirely--from its prior assertion that it would not state whether plaintiffs’ activities could subject them to detention under § 1021 to a qualified one: “the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.”
(Recons. Mem. at 2.) It then set further qualified parameters of its position:
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.
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(Id. at 4 (footnote omitted).) In its pre-trial memorandum, the
Government reiterated that position. (See Gov’t Trial Mem. at
20.)
The Government did not put forth a witness to explain the
difference between its first, March position and its second (set
forth in its May reconsideration brief and reiterated in its
June pre-trial memorandum). Nor did it provide the Court with a
reason that this second position is the binding one, or why the
new position does not leave plaintiffs at the mercy of “noblesse
oblige.” See U.S. v. Stevens, 130 S. Ct. 1577, 1591 (2010).
There is no guarantee that the position will not--or cannot--
change again. In other words, the Government’s new position--
without any guarantees of its firmness--cannot rebut the
standing that plaintiffs established at the March hearing.
In addition, at the March hearing the Government was unable
to offer definitions for the phrases “substantially support” or
“directly support.” Tr. I at 223-226. In particular, when the
Court asked for one example of what “substantially support”
means, the Government stated, “I’m not in a position to give one
specific example.” Id. at 226. When asked about the phrase
“directly support,” the Government stated, “I have not thought through exactly and we have not come to a position on ‘direct support’ and what that means.” Id. at 229-30. In its pre-trial
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memoranda, the Government also did not provide any definitional examples for those terms.18
What evidence could the Government have offered in this matter? Are its positions necessarily based only on legal argument not susceptible to “proof”? Certainly not. The
Government’s positions included mixed questions of law and fact.
With due regard for the Government’s legitimate authority to exercise prosecutorial discretion and the Government’s need for secrecy in matters of true national security, there were nonetheless several types of evidence the Government could have offered.
First, in opposing plaintiffs’ standing the Government could have offered that no one has in fact been detained for any activities protected by the First Amendment (if such evidence existed). Based upon credibility, a single statement may not have required further elaboration that would have tread into areas of national security. (Even so, of course, there are well-established ways of dealing with such matters in judicial proceedings.)
The Government also could have presented evidence regarding the decision-making process for § 1021(b)(2) enforcement
18 In its pre-trial memorandum, the Government did refer to the dictionary definition of the word “support,” but did so not to offer an applicable framework for understanding the scope of the statute, but rather to refute plaintiffs’ position that support can and does include activities protected by the First Amendment. (See Gov’t Trial Mem. at 42.)
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determinations--namely, the type of checks and balances that may exist to ensure consistent and non-arbitrary enforcement. The
Government could have offered a witness on law enforcement’s need for the breadth of § 1021 based upon factual scenarios that have occurred, but as to which secrecy is not required. The
Government could have offered a witness who could have testified as to examples of how law enforcement has actually interpreted
(if anyone has) the words “substantially support,” “directly support,” or “associated forces.” Any of that evidence may have provided an evidentiary basis for what are instead simply legal arguments or ipse dixit that plaintiffs’ fears of detention were unreasonable.
The Court is not suggesting the Government bears the burden of proof on standing; it does not. It could, however, have chosen to provide an evidentiary basis for its defense. Just as with any litigant, the Government’s position would have been strengthened had it offered facts supportive of its assertions.
As a result of the Government’s strategic trial choice, the
Court is left with a one-sided evidentiary record. The Court will not--indeed, it cannot--“assume” what the Government’s evidence would have been.19
19 The Government argues that plaintiffs “cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention.” (Gov’t Trial Mem. at 2.) That position is patently unfair. Plaintiffs cannot, any more than the Court, possibly know the reasons for the military
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III. THE EVOLUTION OF THE AUMF AND § 1021
This proceeding directly implicates both the AUMF, signed
into law on September 18, 2001, and § 1021(b)(2) of the NDAA
because the Government’s central challenge to plaintiffs’
standing is that their fears of detention cannot be reasonable
since § 1021(b)(2) is simply a reaffirmation of the AUMF. In
other words, the Government contends § 1021 does nothing new.
(See, e.g., Gov’t Trial Mem. at 6-7); Tr. II at 82-84.
Repeatedly throughout this litigation, the Government has argued
that the AUMF is coextensive with § 1021(b)(2). The Court
preliminarily rejected that position in its May 16 Opinion, and
does so again now.
Passed in September 2001, the AUMF states,
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
AUMF § 2(a) (emphasis added).
detention of all of those who have been detained (the facts regarding some subset of detainees can be gleaned from habeas petitions; but it is impossible to know the bases on which the majority have been detained). There is no requirement for openness in that regard--no list to which one can refer, and the Government chose not to put in any evidence to prove this point. In fact, when the Court asked the Government whether anyone had been detained under § 1021(b)(2) for activities protected by the First Amendment, counsel conceded that for the most part, he did not know. See Tr. II at 91- 92.
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The text of § 1021 clearly both restates the original AUMF detention authorization, and expands its coverage to persons other than those originally intended. It also directly incorporates, for the first time, the law of war. Sections
1021(a) and (b)(1) state:
(a) IN GENERAL.-- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) COVERED PERSONS. -- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
NDAA §§ 1021(a)-(b)(1).
The Government’s position that the AUMF and § 1021(b)(2) are coextensive is wrong as a matter of law and fact. By relying so heavily on that argument, the Government itself has chosen to require judicial determination of the question of whether the AUMF and § 1021(b)(2) are in fact the same or different; the “reasonableness” of plaintiffs’ fears of detention now turns in large part on the answer to that question. The Court recognizes that such a determination could create interpretive tensions relating to the AUMF, and the Court
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would have avoided directly reaching the issue had the
Government’s position not required it to do so.
The statutes are, in fact, strikingly different in language and, as a result, scope. Careful tracing of the AUMF and case law discussing the President’s detention authority under the
AUMF demonstrate an evolutionary process: the AUMF set forth detention authority tied directly and only to September 11,
2001; at some point (and this Court does not know when), without additional Congressional authorization, the executive branch began to interpret its detention authority more broadly. It is unclear whether anyone has been detained under this broader interpretation. At least two courts--including the Supreme
Court--have rejected the broader iteration of detention authority (similar to that now set forth in § 1021(b)(2)) under the original language of the AUMF.20 See, e.g., Hamdi v.
Rumsfeld, 542 U.S. 507, 523, 526 (2004)21 (“[O]ur opinion finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant”; “Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be ‘part of or supporting forces hostile to the United States or coalition partners’ and
20 In those cases, the Government set forth its position in its respective oppositions to habeas petitions filed by Guantanamo detainees.
21 Hamdi’s seizure was undisputedly in a combat zone. 542 U.S. at 510.
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‘engaged in armed conflict against the United States’ to justify his detention in the United States for the duration of the relevant conflict.” (emphasis added)); Hamlily v. Obama, 616 F.
Supp. 2d 63, 69 (D.D.C. 2009) (“[T]he Court rejects the concept of ‘substantial support’ as an independent basis for detention.
Likewise, the Court finds that ‘directly support[ing] hostilities’ is not a proper basis for detention. In short, the
Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of
‘support’ as a valid ground for detention. . . . Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not supported by domestic law or the law of war.”); cf. Gherebi v. Obama, 609 F.
Supp. 2d 43, 46, 53, 61-67 (D.D.C. 2009), abrogated by Uthman v.
Obama, 637 F.3d 400 (D.C. Cir. 2011) (limiting the scope of detention authority while finding detention appropriate in the case at bar); id. at 46 (“The scope of the detention authority claimed by the President in armed conflict authorized by the
AUMF began to take shape within months of the passing of the joint resolution [i.e., the AUMF]”); id. at 53 (referring to the
March 2009 Memorandum as “modifying [the Government’s] standard for detaining individuals like petitioner.” (emphasis added)); id. at 68-69 (“sympathizers, propagandists, and financiers who have no involvement with this ‘command structure,’ while perhaps
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members of the enemy organization in an abstract sense, cannot be considered part of the enemy’s ‘armed forces’ and therefore cannot be detained militarily unless they take a direct part in the hostilities. . . . The key question is whether an individual
‘receive[s] and execute[s] orders’ from the enemy forces combat apparatus.”); id. at 70 (referring to the Government’s refusal to define the qualifier “substantial” in relation to “support”).
In rejecting the Government’s view of its sweeping detention authority, the Supreme Court stated in Hamdi:
[A]s critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of a threat.
542 U.S. at 530 (citing Milligan, 71 U.S. at 125). The Court continued: “[W]e live in a society in which ‘[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.’” Id. at 531
(citing O’Connor v. Donaldson, 422 U.S. 563, 575 (1975)). The
Supreme Court made it clear that its view of the AUMF related to detention on the field of battle. Id. At the August hearing, however, the Government took the position that detention under the AUMF and § 1021(b)(2) requires neither presence on a battlefield nor the carrying of arms. See Tr. II at 93-95.
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Even without looking at § 1021(b)(2), § 1021 adds a new
element not previously set forth in the AUMF (although the
Government has argued that it is implicit in the AUMF): the
addition of the “law of war” language. Section 1021 explicitly
incorporates disposition under the law of war:
(c) DISPOSITION UNDER THE LAW OF WAR. The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].
. . .
(d) CONSTRUCTION. Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].
NDAA § 1021(c)-(d). Such clear embodiment of vague “law of war”
principles, see Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir.
2010), has never heretofore been included in a statute relating
to military detention authority after September 11, 2001. It is
clear that the AUMF does not mention the law of war, though.22
What does the law of war add?
Here again, a review of recent case law reveals a likely
answer: the Government proffered the “law of war” in support of
22 As set forth herein, the limiting phrase “law of war” lacks precise meaning. Most frequently, it refers to rules of conduct during wartime (such as the Geneva Convention’s treatment of prisoners of war). It does not confer any detention authority. It appears that the Government uses the phrase to mean something quite different and akin to “what the President can do in war time, because it’s war time.” If so, and this would be the only basis to refer to the law of war for expansive interpretation of detention authority, then the argument really relates to the parameters of Article II powers.
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an expansive interpretation of detention authority under the
AUMF, which was rejected by multiple courts. See, e.g.,
Al-Bihani, 590 F.3d at 871; Gherebi, 609 F. Supp. 2d at 53. As stated below, courts made it clear that the laws of war had in fact never been made part of a domestic statute, and therefore could not be part of the AUMF. However, the Government needed an anchor for its already expansive interpretation of the AUMF.
Specifically, in Al-Bihani, the Circuit Court for the District of Columbia rejected an argument, made by the Government in opposing another Guantanamo habeas petition, that the laws of war were incorporated into the President’s detention authority.
See Al-Bihani, 590 F.3d at 871.
In Al-Bihani, the D.C. Circuit stated that the Government’s arguments regarding its detention authority:
rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. That premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div.A, tit. X, 119 Stat. 2739, 2741-43, or the [Military Commission Act of 2006 or 2009], that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF.
Id. The Court of Appeals made its position quite clear: “The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for the U.S. courts.” Id.
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The D.C. Circuit further stated: “[T]he international laws
of war are not a fixed code. Their dictates and application to
actual events are by nature contestable and fluid.” Id. Thus,
“their lack of controlling force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.” Id.23
Thus, clear reference to the “law of war” in § 1021(b)(2) is an
attempt to solve legislatively the issue referred to in Al-
Bihani. Based upon the Court’s review of the AUMF and the NDAA,
as well as other relevant statutes, and controlling law, calling
§ 1021 a “reaffirmation” implies a type of retroactive fix to
what was by then a developed problem of executive branch usage
encountering judicial resistance.
In 2009, in the context of litigating a number of habeas
petitions, the United States District Court for the District of
Columbia requested that the Government submit a statement of its
interpretation regarding the scope of its detention authority.
23 In Al-Bihani, petitioner had carried arms and supplied food for an al-Qaeda affiliated organization. 590 F.3d at 872-73. The court found support for the petitioner’s detention under the “purposefully and materially supported” language of the MCAs of 2006 and 2009. Id. at 873. Pursuant to the 2009 MCA, an “unprivileged enemy belligerent” is defined as an individual who (1) “has engaged in hostilities against the United States or its coalition partners,” (2) “has purposefully and materially supported hostilities against the United States or its coalition partners,” or (3) “was a part of al-Qaeda at the time of the alleged offense under this chapter.” 10 U.S.C. § 948a(7). The 2009 MCA specifies that “[a]ny alien unprivileged enemy belligerent is subject to trial by military commission.” 10 U.S.C. § 948c. Although al- Bihani was detained prior to the passage of the 2006 MCA, the Court declined to ground his detention in the AUMF (based on the overly-broad interpretation of the Government’s detention authority) and instead referred to the MCA (though the MCA does not provide for separate detention authority). Al- Bihani, 590 F.3d at 869-73.
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Per that request, in March 2009, the Government submitted a
document which, in the first sentence, states it is “refining”
its position “with respect to its authority to detain those
persons who are now being held at Guantanamo Bay.” (See
Resp’t’s Mem. Re: the Gov’t’s Detention Authority Relative to
Detainees Held at Guantanamo Bay, at 1, In re Guantanamo Bay
Detainee Litig., Misc. No. 08-442 (D.D.C. Mar. 13, 2009) (the
“March 2009 Memorandum”) (emphasis added).)
In the March 2009 Memorandum, the Government based its
position on its detention authority under the AUMF as
“necessarily informed by principles of the law of war.” (Id. at
1.) As the Government itself acknowledged:
This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict. Accordingly, under the AUMF, the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks. The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.
(Id. at 1 (emphases added).)
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In this memorandum, the Government also explicitly stated
that its position “is limited to the authority upon which the
Government is relying to detain the persons now being held at
Guantanamo Bay. It is not, at this point, meant to define the
contours of authority for military operations generally, or
detention in other contexts.” (Id. at 2 (emphasis added).) Put
another way, in March 2009 the Government was not taking the
position that the AUMF was coextensive in all circumstances with
the type of detention authority resembling that set forth now in
§ 1021(b)(2).24
As the D.C. Circuit recognized in Al-Bihani, the law of war
has never been, and should not be, part of the domestic laws in
the United States. Al-Bihani, 590 F.3d at 871. The law of war
is vague by necessity--it needs flexibility. Id. It is
therefore ill-suited to domestic application and it would be
ill-advised to make it a part of domestic law. See id.
In the face of cases ruling that the law of war does not
provide for the expansive detention authority the Government
24 The Declaration of Attorney General Eric H. Holder, Jr. submitted in support of the March 2009 memorandum stated that the “Government is submitting herewith an explanation of its detention authority upon which it intends to rely in this litigation, notwithstanding its continuing intensive efforts to develop fully its prospective detention policies.” (Decl. of Atty. Gen. Eric H. Holder, Jr., ¶ 2, In re: Guantanamo Bay Detainee Litig., Misc. No. 08-442 (Dkt. No. 201-1) (D.D.C. Mar. 13, 2009) (emphasis added).) He also states that in connection with reviews of the status of Guantanamo detainees, “the Executive Branch has refined the Government’s position with respect to the detention authority to be asserted in this litigation . . . .” (id. ¶ 10 (emphasis added)); and “[t]he Task Force will continue to deliberate regarding these issues as part of their work” (id. ¶ 11 (emphasis added)).
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envisions, the inclusion of the “law of war” in § 1021 appears to have been intended as a legislative gap-filler, a “fix.”
Section 1021(b)(2) differs from the AUMF in another, independent way. At the August hearing, the Government conceded that § 1021(b)(2) does not require that a “Covered Person’s” actions be--in any way--connected to the attacks of September
11, 2001, or that a “Covered Person” be on the field of battle or even carrying arms. See Tr. II at 93-95. Section 1021(b)(2) defines “Covered Persons” as:
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
NDAA § 1021(b)(2). This provision contains concepts well beyond a direct involvement in the attacks of September 11, 2001--or even harboring those responsible for those attacks, as contemplated in the AUMF. It adds significant scope in its use of the phrases “substantially supported,” “associated forces that are engaged in hostilities against the United States or its coalition partners,” and “directly supported”--none of which are defined in their own right, as discussed throughout this
Opinion.
During the August hearing, this Court asked the Government:
The Court: You would agree with me that 1021(b)(2) does not require that an individual have – I will
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quote the language – planned, authorized, committed or aided terrorist attacks that occurred on September 11, 2001?
[Government]: The individual need not have done that. That’s correct.
The Court: Okay. And the individual need not have harbored such organizations or persons?
Government: That’s correct.
Tr. II at 106; see also id. at 108-09.
Section 1021 is, therefore, significantly different in scope and language from the AUMF. The expansion of detention authority to include persons unconnected to the events of
September 11, 2001, unconnected to any battlefield or to the carrying of arms, is, for the first time, codified in § 1021.
The same is true for the codification of the disposition of the law of war in § 1021.
The discussion of the two statutes’ differences further undergirds this Court’s factual findings that each plaintiff who testified has a reasonable fear that § 1021(b)(2), which in fact provides broader scope for detention, could be used to detain him or her. The fact that a plaintiff was not previously detained pursuant to the AUMF has no relevance to his or her current state of mind regarding § 1021(b)(2), nor does it provide guidance as to what executive branch practice with respect to § 1021(b)(2) is likely to be.
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Implicit in the Government’s argument that plaintiffs’ fears regarding § 1021 are unreasonable is that the Government has, in fact, been acting consistently over time by interpreting the AUMF as expansively as the language of § 1021. Since there was no congressional authorization for such broad detention authority prior to the passage of § 1021, since on its face the
AUMF does not encompass detention for individuals other than those directly linked to the events of September 11, 2001, and since the reasons for individual detention decisions are not publicly reported, it is entirely reasonable and logical for plaintiffs to have understood that § 1021 presents a new scope for military detention.
IV. OTHER RELEVANT STATUTES
A. The Government’s Arsenal of Prosecution Tools
The AUMF and § 1021(b)(2) are only two of many statutes that provide the executive branch with tools to combat terrorism in its myriad forms. When the AUMF is read according to its plain terms and criminal statutes considered, it reasonably appears that the Government has the tools it needs to detain those engaged in terrorist activities and that have not been found to run afoul of constitutional protections.
In particular, there are laws that provide for arrest of individuals engaged in “material support” of terrorist organizations, including 18 U.S.C. §§ 2339A-2339B. Section
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2339A, originally passed in 1994, and modified on numerous
occasions between then and December 2009, prohibits the
“knowing” provision of material support or resources to a
foreign terrorist organization. Id. § 2339A(a). An individual charged and found guilty under the statute is subject to a fine and a term of imprisonment of up to (but not more than) 15 years
(if death results from the activity, then a life term may be imposed). Id. This statute has been refined several times over
the years and now contains a comprehensive statutory scheme that
defines key terms (such as what constitutes “material support”).
See id. § 2339A(b)(1). As a criminal statute, those prosecuted
pursuant to it are entitled to full due process under the
Constitution--and the statute itself provides for additional
process. See id. § 2339B.
Notably (in light of the Government’s position in this
case, which uses the word “independent” to modify its statements
regarding plaintiffs’ activities), a portion of 18 U.S.C.
§§ 2339A-2339B relates to the “Provision of Personnel”:
“Individuals who act entirely independently of the foreign
terrorist organization to advance its goals or objectives shall
not be considered to be working under the foreign terrorist
organization’s direction and control.” 18 U.S.C. § 2339B(h).
The statute also has an explicit “saving clause” which states:
“Nothing in this section shall be construed or applied so as to
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abridge the exercise of the rights guaranteed under the First
Amendment of the Constitution of the United States.” Id.
§ 2339B(i).
In 1998, a group of organizations brought suit, asserting
that the original version of § 2339B unconstitutionally rendered
criminal protected First Amendment conduct, and also violated
the due process clause of the Fifth Amendment. See Holder, 130
S. Ct. at 2714. Despite the amendments to the statute over the
years--which added specific definitions of key terms and the
saving clause described above, the lawsuit continued. When the
suit reached the Supreme Court, Chief Justice Roberts held that
this “material support” statute was “constitutional as applied
to the particular activities plaintiffs have told us they wish
to pursue. We do not, however, address the resolution of more
difficult cases that may arise under the statute in the future.”
Id. at 2712. That holding was based, in part, on the fact that
the statute’s extensive definitional framework eliminated the
plaintiffs’ vagueness concerns. See id. at 2741. The Court
expressly allowed a preenforcement challenge in light of the
possible penalties the plaintiffs could face. Id. at 2717.
18 U.S.C. §§ 2339A-2339B has been used to charge more than
150 persons. Holder, 130 S. Ct. at 2717. For example, on May
24, 2012, Minh Quang Pham was indicted under 18 U.S.C.
§ 2339A(b)(1) for providing material support to a foreign
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terrorist organization. The specific overt act charged against
Pham is working with a U.S. citizen to create online propaganda
for al-Qaeda, in furtherance of the conspiracy. Sealed
Indictment ¶ 3(c), United States v. Pham, No. 12 Cr. 423 (AJN)
(S.D.N.Y. May 24, 2012).25
In addition to 18 U.S.C. § 2339A-2339B, there are numerous
criminal statutes available to prosecute and bring to justice
those who commit illegal acts furthering war or acts of
terrorism against the United States or its interests, including
18 U.S.C. § 2381 (the modern treason statute); 18 U.S.C. § 32
(destruction of aircraft or aircraft facilities); 18 U.S.C.
§ 2332a (use of weapons of mass destruction); 18 U.S.C. § 2332b
(acts of terrorism transcending national boundaries); 18 U.S.C.
§ 2382 (misprision of treason); 18 U.S.C. § 2383 (rebellion or
insurrection); 18 U.S.C. § 2384 (seditious conspiracy); 18
U.S.C. § 2390 (enlistment to serve in armed hostility against
the United States); and 50 U.S.C. § 1705(c) (prohibiting making
or receiving of any contribution of goods or services to
terrorists).26
B. The Non-Detention Act
Section 1021(b)(2) and the AUMF must be read against the backdrop of the 1971 passage of the Non-Detention Act, 18 U.S.C.
25 The Indictment was unsealed on August 23, 2012. 26 Individuals prosecuted under such criminal statutes are, of course, afforded the full array of constitutional rights attendant to criminal proceedings.
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§ 4001. That act provides: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.” 18 U.S.C. § 4001(a). That statute goes to the question, oft-repeated in Guantanamo habeas challenges, of whether the AUMF’s scope captures the various circumstances under which individuals have been detained. Based upon the
Government’s assertion that the AUMF and § 1021(b)(2) are “the same,” the answer to that question has great import for this action. The point for present purposes is whether plaintiffs reasonably believed (and still believe) that § 1021(b)(2) authorizes new and broader detention authority.
Although in Hamdi a majority of the Supreme Court found that the AUMF did provide for detention authority, such authority was clearly circumscribed: “[O]ur opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant . . .” Hamdi, 542 U.S. at 523. The Court continued,
Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in armed conflict against the United States’ to justify his detention in the United States for the duration of the relevant conflict.
Id. at 526 (emphases added).
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In his lengthy dissent in Hamdi, Justice Scalia (joined by
Justice Stevens) disagreed that the AUMF should be read even that expansively. Justice Scalia’s dissent is supportive of plaintiffs’ assertion in this litigation--that the AUMF does not go as far as the Government urges this Court to find. The majority in Hamdi of course found sufficient authority for the
petitioner’s--that is not the point here. The majority was not
comparing the AUMF to § 1021(b)(2). Moreover, the fact that a
Supreme Court Justice himself agrees that there are limits to
the detention authority granted by the AUMF speaks to the
reasonableness of plaintiffs’ state of mind. Such
reasonableness supports their standing in this proceeding.
Accordingly, the Court describes at some length Justice Scalia’s
position.
In support of his position, he wrote that the AUMF risked
unconstitutionality if expanded beyond certain limited bounds.
See id. at 573-77 (Scalia, J., dissenting). Justice Scalia set
forth a variety of statutes that already provided for the arrest
and prosecution of American citizens. As he stated: “Citizens
aiding the enemy have been treated as traitors subject to
criminal process.” Id. at 559.
Justice Scalia then traced the history of such authority
back to its origins in 1350 under England’s Statute of Treasons;
he cited a number of cases on which American citizens had been
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charged and tried in Article III courts (with the due process rights guaranteed by the Constitution) for acts of war against the United States even when their noncitizen co-conspirators were not. Id. at 559-60. Relying upon several early 19th century cases in which courts held that the law of war did not allow for military detention of an American citizen in the
United States when the courts are open, see id. at 565-68
(citing Milligan, 71 U.S. at 128-29; Smith v. Shaw, 12 Johns.
*257 (N.Y. 1815); In re Stacy, 10 Johns. *328 (N.Y. 1813)),
Justice Scalia stated: “The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal,” id. at 568. That reason suggests that the AUMF (and thus, by Congress’
“reaffirmation” of it, in § 1021) is an inappropriate basis for detaining American citizens anywhere or non-citizens for acts occurring on American soil.
Justice Scalia’s dissent dealt explicitly with the argument that the Government has here reasserted--i.e., that the Supreme
Court’s decision in Quirin approved indefinite imprisonment of a citizen within the territorial jurisdiction of the federal courts. Hamdi, 542 U.S. at 569 (Scalia, J., dissenting). In
Quirin, the Court upheld trial by military commission of eight saboteurs, one of whom was an American citizen. As Justice
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Scalia stated, “The case was not the Court’s finest hour.”
Hamdi, 542 U.S. at 569 (Scalia, J., dissenting). It issued a
decision one day after oral argument (a week before the
executions were carried out), and the Court only explained its
rationale in a decision issued several months later. Id. at
569. In Quirin, however, there was no doubt that petitioners
were members of enemy forces--they were ‘admitted’ enemy
invaders. Id. at 571 (quoting Quirin, 317 U.S. at 47). Justice
Scalia, with Justice Stevens joining, believed that Hamdi should
be prosecuted in an Article III court. Id. at 573. The
Government here relies heavily on Quirin. The same rationale
that Justice Scalia used to reject its applicability in Hamdi applies here.27
Given that Congress has provided the executive branch with
ample authority to criminally prosecute those engaged in a wide
swath of terroristic or war-making behavior, and the lack of
support for an expansive reading of the AUMF, plaintiffs’ belief
that § 1021(b)(2) provides for a new, expanded scope for
military detention is reasonable.
V. STANDING AND MOOTNESS
27 The majority in Hamdi cites Quirin approvingly. As set forth below, the facts of that case are inapposite to those before this Court. This Court references Justice Scalia’s criticism of Quirin as further support for the fact that plaintiffs, who are not Supreme Court Justices, could similarly reasonably believe that the AUMF (even against the backdrop of Quirin) does not provide a sweeping basis for broad domestic detention authority by the Executive.
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Pursuant to Article III of the Constitution, federal courts may only entertain actual cases or controversies. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). That requirement has two components: the threshold question of whether the plaintiffs who have brought an action have standing, see id. at 561, and whether over the course of the litigation the matter has been rendered moot, see Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 189 (2000).
A. Principles of Standing and Analysis
Plaintiffs bear the burden of establishing standing for each claim asserted. See Daimler-Chrysler Corp. v. Cuno, 547
U.S. 332, 342 (2006); Lujan, 504 U.S. at 561. Standing is determined as of the outset of the litigation. Lujan, 504 U.S. at 569 n.4; Mink v. Suthers, 482 F.3d 1244, 1253 (10th Cir.
2007); Mental Hygiene Legal Serv. v. Cuomo, 785 F. Supp. 2d 205,
215 (S.D.N.Y. 2011).
The Supreme Court has set out three “irreducible constitutional minimum” requirements for standing: (1) each plaintiff must have suffered an injury in fact of a legally protected interest; this means that injury must be actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the conduct complained of and plaintiff’s injury, and (3) it must be likely, as opposed to
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speculative, that the injury can be redressed by a favorable
decision. Lujan, 504 U.S. at 561.
The Supreme Court has long been clear that a hypothetical
threat is not enough to confer standing. See Boyle v. Landry,
401 U.S. 77, 80-81 (1971) (no standing where plaintiffs had
“made a search of state statutes and city ordinances with a view
to picking out certain ones that they thought might possibly be
used by the authorities as devices for bad-faith prosecutions
against them”); United Mine Workers of Am. v. Mitchell, 330 U.S.
75, 90 (1947) (declining to find standing where the threat was
found to be hypothetical).
The Supreme Court has also instructed that there is an
exception to the requirement of injury-in-fact where
infringement of First Amendment rights are at issue. Virginia
v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988).28 The
Court found that if the plaintiffs were correct in their
interpretation of the statute, their speech would be chilled, or
they would risk criminal prosecution. Id. “[T]he alleged
danger of this statute is, in large measure, one of
self-censorship; a harm that can be realized even without an
28 In American Booksellers, the statute at issue required a “knowing display” of certain materials. 484 U.S. at 383. The lower court found that 95 percent of the conduct of the booksellers would not be affected by the statute; a finding of a five percent impact was sufficient for its facial invalidation. Moreover, in that case, the evidence adduced at the preliminary injunction hearing also constituted the evidence for the trial on the merits. Id. at 389.
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actual prosecution.” Id. The Court held, “in the First
Amendment context, ‘litigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Id. at 392-93 (quoting Sec’y of State of Md. v.
J.H. Munson Co., 467 U.S. 947, 956-57 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973))); see also Vt. Right to
Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000)
(finding standing, and citing American Booksellers for the proposition that the alleged danger of the statute is self-censorship).
The Government cites a number of cases in opposition to plaintiffs’ standing. None are apposite. In Laird v. Tatum,
408 U.S. 1 (1972) (cited in Gov’t Trial Mem. at 27), the Supreme
Court declined to find standing for individuals who claimed that their activities were being chilled by the mere existence of a statute which allowed a governmental body to conduct investigative work. Id. at 13-14. The Court distinguished that situation from the type at issue here where the statute sets forth specific penalties to be imposed on individuals-- indefinite military detention. Thus, unlike in Laird, here there is no need for the fruits of the statute to be used for
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some later purpose; the fruit of the exercise of § 1021 is indefinite detention.
Los Angeles v. Lyons, 461 U.S. 95 (1983) (cited in Gov’t
Trial Mem. at 18-19) is also inapposite. In Lyons, the issue was whether an individual who had been placed in a chokehold by the police could seek broad injunctive relief against a policy allowing for such chokeholds. Id. at 101. The Court found standing lacking because no facts suggested that the plaintiff had any expectation of ever being placed in a chokehold by the police again--i.e., the plaintiff did not face a realistic threat of recurrence.
Here, of course, plaintiffs are engaged--and the facts as found by this Court make it clear they would continue to engage
(without the fear of detention)--in the testified-to First
Amendment activities. This Court has found as a fact that plaintiffs’ writings, speeches, and associational activities are by no means at an end. This Court has also found that those activities have already been chilled. On these facts, the
Supreme Court’s holding in Lyons is simply inapplicable.
The Government also cites Daimler-Chrysler for the proposition that facts supporting standing must appear affirmatively in the record. (See Gov’t Trial Mem. at 18, 26.)
In Daimler-Chrysler, disgruntled residents of Toledo, Ohio brought a lawsuit alleging injury based on tax breaks given to
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Daimler-Chrysler. The Supreme Court found standing lacking for
those state-taxpayer plaintiffs on the same grounds that it
repeatedly denies standing to federal taxpayers challenging a
particular expenditure of federal funds--i.e., “interest in the
moneys of the Treasury . . . is shared with millions of others;
is comparatively minute and indeterminable; and the effect upon
future taxation . . . so remote, fluctuating and uncertain, that
no basis is afforded for an appeal to the preventive powers of a
court of equity.” Daimler-Chrysler, 547 U.S. at 343 (quoting
Mass. v. Mellon, 262 U.S. 447, 486 (1923)).
Here, the Court held an evidentiary hearing and has made
findings of fact: the plaintiffs specified the actual work they
have done and intend to do; they testified credibly as to their
fear and lack of understanding of § 1021(b)(2); and the
Government at that hearing would not state that they would not
be detained for these activities. In other words, there are no
factual similarities between Daimler-Chrysler and the case
before this Court.
1. Preenforcement Challenges
The Supreme Court has recognized that preenforcement
challenges can be appropriate in the context of statutes that
impose criminal penalties, Holder, 130 S. Ct. at 2717, as well
as in the context of the First Amendment, Am. Booksellers, 484
U.S. at 393. Section 1021(b)(2) implicates both.
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In the context of a criminal statute, plaintiffs must, however, face a credible threat of prosecution. See Holder, 130
S. Ct. at 2717; Babbitt v. United Farm Workers Nat’l Union, 442
U.S. 289, 298 (1979)(“When contesting the constitutionality of a criminal statute, ‘it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.’” (citing Steffel v.
Thompson, 415 U.S. 452, 459 (1974)); see also Doe v. Bolton, 410
U.S. 179, 188 (1973). If prosecution is not “remotely possible,” then a plaintiff lacks standing. Babbitt, 442 U.S. at 299 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)).
In Amnesty International USA v. Clapper, 638 F.3d 118 (2d
Cir. 2011), cert. granted, 132 S. Ct. 2431 (2012), the Second
Circuit allowed a preenforcement challenge where the plaintiffs alleged a prospective injury to First Amendment rights, and showed an actual and well-founded fear of injury--not that the injury had already occurred. Id. at 131, 135. In support of such a finding the Second Circuit stated: “[T]he fact that the
Government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government
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officials will actually engage in that conduct by carrying out
the authorized [injury].” Id. at 138.29
Similarly, in Vermont Right to Life, the Second Circuit
found that where a plaintiff has alleged an intention to engage
in a course of conduct “arguably affected” with a constitutional
interest, but proscribed by a statute, and a credible threat of
prosecution exists, the plaintiff should not be made to wait
until he or she has been prosecuted to seek redress. 221 F.3d
at 382. There, the organization bringing the challenge would
have been subject to a civil rather than criminal charge. The
court found that distinction to be of “no moment” given the
constitutional issues involved. Id. at 382 (“The fear of civil penalties can be as inhibiting of speech as can trepidation in the face of threatened criminal prosecution.”); see also Va.
Soc’y for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d
379, 390 (4th Cir. 2001) (preenforcement challenge allowed when
the presence of the regulation resulted in the plaintiffs
changing their conduct).
2. Facial Challenges
Whether or not a facial challenge is permissible implicates
plaintiffs’ standing. Under Lujan, it is clear that traditional
29 As this Court found in its May 16 Opinion, § 1021(b)(2) is equivalent to a criminal statute--without the due process protections afforded by one. See Hedges, 2012 WL 1721124, at *18. There is no conceivable doubt that the possibility of being placed in indefinite military detention is the equivalent of a criminal penalty. Indeed, perhaps in many circumstances, worse.
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rules of standing require that a plaintiff have injury in fact.
A facial challenge seeks to invalidate a statute in all of its applications--going beyond those which a particular plaintiff would him or herself have standing to bring. Stevens, 130 S.
Ct. at 1587.
In a case decided one year after Lujan, Alexander v. United
States, 509 U.S. 544 (1993), the Supreme Court reiterated the long-standing principle that when a plaintiff is challenging a statute as overbroad and impinging on First Amendment rights, facial challenges are permissible. Id. at 555. That enables a plaintiff to challenge the statute in its entirety. Stevens,
130 S. Ct. at 1587 (in a facial challenge in the context of the
First Amendment protections of speech, a law may be invalidated as overbroad if a substantial number of its applications are deemed unconstitutional, judged in relation to the statute’s
“plainly legitimate sweep”).
Alexander and Stevens follow the Supreme Court’s earlier holdings of, inter alia, City of Chicago v. Morales, 527 U.S. 41
(1999), and Broadrick v. Oklahoma, 413 U.S. 601 (1973). In
Morales, the Court found that because the statute was challenged on First Amendment grounds, it implicated the doctrine of “jus tertii” or third-party standing. In the context of the First
Amendment, the Court also held that a plaintiff is not required to show that there are no legitimate applications of the
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statute. Morales, 527 U.S. at 55. In Broadrick, the Court stated that because the First Amendment needs “breathing space,” the traditional rules of standing are relaxed when the challenge relates to speech. 413 U.S. at 611. “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expressions are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. at 617.
3. Commitments regarding Conduct
A number of courts have found that a commitment that a statute will not be enforced against a particular plaintiff does not eliminate standing. See, e.g., Stevens, 130 S. Ct. at 1591
(finding a statute facially invalid on First Amendment grounds, and refusing to “uphold an unconstitutional statute merely because the Government promised to use it responsibly”); Am.
Booksellers, 484 U.S. at 393 (“[T]he State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise.”); Vt. Right to Life, 221 F.3d at
383 (“The State also argues that VRLC’s fear of suit could not possibly be well-founded because the State has no intention of suing [plaintiff] VRLC for its activities. While that may be so, there is nothing that prevents the State from changing its
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mind.”);30 Mental Hygiene Legal Serv., 785 F. Supp. 2d at 220
(finding standing because although law enforcement officials
said they would not enforce the statute against the plaintiffs,
nothing prevented future law enforcement officials from taking a
contrary position).
In Stevens, Chief Justice Roberts wrote that “the First
Amendment protects us against the Government; it does not leave
us at the mercy of noblesse oblige.” 130 S. Ct. at 1591. In
Stevens, the Government had committed that it would apply the
statute at issue more narrowly than it might be read. Rather
than accepting such assurances that plaintiffs need not be
concerned, the Supreme Court found the Government’s position an
implicit acknowledgment of the potential constitutional problems
of a more natural reading. Id.
4. Analysis
This Court has found that the facts support each
plaintiff’s standing to bring a preenforcement, facial challenge
with respect to § 1021(b)(2). This Court has analyzed
separately each plaintiff’s standing regarding his or her First
and Fifth Amendment challenge and finds each plaintiff has
standing with respect to each claim.
30 In an analogous situation, courts have held that even voluntary cessation of illegal conduct has not eliminated standing. See Linton v. Comm’r of Health & Env’t, 30 F.3d 55, 57 (6th Cir. 1994) (“It is well-established that voluntary termination of unlawful conduct will not automatically remove the opposing party’s standing.”).
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a. Injury
With regard to their First Amendment challenge, at the
March hearing each plaintiff testified credibly that,
specifically due to concerns about § 1021(b)(2), he or she has
already experienced a chilling of his or her written or oral
speech or associational activities. The Court’s findings as set
forth above, and more briefly summarized here, demonstrate
actual chilling has occurred. Hedges testified that he changed
speeches he planned to make, avoided certain associations, and
was concerned about articles or writing he expected to
undertake. O’Brien testified that she was withholding articles
from publication; Wargalla testified that her organization had
to contemplate changing participants in an online conference;
Jonsdottir stated she has declined speaking engagements. See
Part II, supra. In addition, each plaintiff testified credibly
to ongoing concerns regarding expected future First Amendment
activities. See Part II, supra. Such chilling of speech constitutes actual injury. Indeed, it is precisely the type of chilling that the Supreme Court has found as a basis for standing--including to bring a facial challenge. See Broadrick,
413 U.S. at 630.
With respect to their Fifth Amendment challenge, each
plaintiff testified credibly that he or she had read the statute
and did not understand its scope and, in particular, whether
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his/her activities would fall within that scope. See Part II,
supra. Without such definitional scope, and in the face of the
Government’s inability to provide definitions for the key terms
at issue or define the scope of § 1021(b)(2) and unwillingness
to state in March that plaintiffs’ activities could not subject
them to detention, there are adequate grounds to find
plaintiffs’ vagueness concerns valid.31
Finally, preenforcement challenges are permissible in just
such contexts. Here, based on credible testimony, this Court
has found that each plaintiff has engaged in activities in which
he or she is associating with, writing about, or speaking about
or to al-Qaeda, the Taliban, or other organizations which have
committed (or are associated with organizations that have
committed) terrorist acts against the United States. The words
of § 1021(b)(2) can be read to encompass such activities. These
plaintiffs need not wait until they have been detained and
imprisoned to bring a challenge--the penalty is simply too
severe to have to wait. See, e.g., Holder, 130 S. Ct. at 2717;
Babbitt, 422 U.S. at 298; Vt. Right to Life, 221 F.3d at 382.
31 The Government argues that the Court’s questions improperly shift the burden of establishing standing from plaintiffs to the Government. The Court posed those questions to the Government after plaintiffs had testified credibly regarding their reasonable fear of prosecution under § 1021(b)(2). The questions were asked to provide the Government with an opportunity to rebut plaintiffs’ reasonable fear--i.e., the Court had, subsequent to plaintiffs’ testimony, determined that plaintiffs’ fear of detention under § 1021(b)(2) was reasonable, unless the Government could rebut such a showing. Those questions were the Court providing the Government with just such an opportunity; in no way was the Court alleviating plaintiffs of their burden.
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The Government’s statement--this Court cannot call it a
“commitment” in light of its qualified language--regarding the
unlikelihood of enforcement for certain specified acts does not
eliminate plaintiffs’ standing as to either claim.
First, the fact that the Government has taken two different
positions (one in which the Government refused to make any
commitment) undercuts the viability of the later (qualified)
statement. Second, standing attaches at the outset of a case.,
Lujan, 504 U.S. at 569 n.4, meaning that the later statement
comes too late. Third, the Supreme Court has made it clear in
both the First and Fifth Amendment contexts, a plaintiff need
not rely upon “noblesse oblige”--hoping that enforcement will
not occur, or that one law enforcement official’s interpretation
will be the same as another’s. See Stevens, 130 S. Ct. at 1591;
FCC v. Fox Television Stations, Inc., 132 S. Ct. at 2317.
Plaintiffs meet the requirements for demonstrating the
necessary injury or impact on their conduct for standing.
b. Causation
Each plaintiff testified credibly that § 1021(b)(2) has
caused a chilling of First Amendment activities and an actual
fear of detention due to the vagueness of § 1021(b)(2)’s scope.
See Part II, supra. There can therefore be no doubt as to whether Lujan’s second required element has been met. It has
been.
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c. Redressability
The Government argues that plaintiffs lack standing because
any injury supposedly deriving from § 1021(b)(2) cannot be
redressed by the constitutional challenge since the Government
has precisely the same detention authority under the AUMF.
(Gov’t Trial Mem. at 30-31.) That is not so.
The argument is premised on the erroneous assertion (as the
Court has discussed more fully above) that § 1021 and the AUMF
are the same. They are not. In particular, § 1021(b)(2)--the
very provision which plaintiffs seek to enjoin--provides for a
much broader scope of military detention than provided for in
the AUMF.
It is unavailing that the Government asserts that it has,
without congressional authorization, unilaterally expanded the
AUMF’s detention scope by virtue of its own interpretation. The
Supreme Court previously has rejected that very argument. See
Hamdi, 542 U.S. at 516-18. Simply by asserting that § 1021 is a
reaffirmation of the AUMF does not make it so when its scope is
plainly broader. Accordingly, enjoining § 1021(b)(2), a new
statute with uniquely broad scope, necessarily would redress
plaintiffs’ injuries.
Plaintiffs meet all the required elements to establish
standing.
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B. Principles of Mootness and Analysis
To have an actual case or controversy pursuant to Article
II, a case must also be “real and live, not feigned, academic or conjectural.” Russman v. Bd. of Educ., 260 F.3d 114, 118 (2d
Cir. 2001). This Court addresses whether the Government’s newly articulated position (i.e., that § 1021(b)(2) does not apply if the conduct of plaintiffs is independent as described, and described accurately, and no more than what has been described) renders this action moot.32
When the issues between parties are no longer live, or have become merely conjectural, the case may be moot. See Powell v.
McCormack, 395 U.S. 486, 489 (1969). There are certainly instances where an originally justiciable action has been rendered moot during the course of litigation. However, a case is not moot when there is a reasonable expectation that the alleged violation may recur. See Murphy v. Hunt, 455 U.S. 478,
482 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953).
This case is not moot. First, at the March hearing, the
Government declined to state that any of plaintiffs’ conduct would not be encompassed by § 1021(b)(2). See Hedges, 2012 WL
1721124, at *14-15 (citing Tr. I). In its motion for
32 The party seeking to have a case dismissed as moot bears a heavy burden. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).
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reconsideration, the Government’s position changed first to a
broad statement--“the conduct alleged by plaintiffs is not, as a
matter of law, within the scope of the detention authority
affirmed by section 1021” (Recons. Mem. at 2)--and then to a
more complicated, qualified statement (set forth above but worth
reciting again here):
As a matter of law, individuals who engage in the independent journalistic activities or independent public advocacy described in plaintiffs’ affidavits and testimony, without more, are not subject to law of war detention as affirmed by section 1021(a)-(c), solely on the basis of such independent journalistic activities or independent public advocacy. Put simply, plaintiffs’ descriptions in this litigation of their activities, if accurate, do not implicate the military detention authority affirmed in section 1021.
(Recons. Mem. at 4.) This qualified statement, reiterated in
the Government’s pre-trial memorandum (Gov’t Trial Mem. at 20),
is a multi-part, carefully constructed exception to the
Government’s view of detainable conduct. The parts consist of
the following elements, each of which is not itself defined and
each of which narrows the assurance: (1) independent
(2) journalistic activities; or (3) independent, (4) public
advocacy, (5) described in plaintiffs’ affidavits and testimony,
(6) without more, (7) are not subject to the law of war detention as affirmed by section 1021(a)-(c), solely on the
basis of such conduct. That language is followed by the
additional statement that plaintiffs’ descriptions (a) in this
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litigation of their activities, (b) if accurate, (c) do not
implicate military detention.
The totality of those qualifications hardly provides
plaintiffs reasonable assurance that there is no likelihood of
detention under § 1021. Indeed, the opposite is true.
Confronted initially by the Government’s position that it would
not state whether plaintiffs’ known activities could subject
them to detention under § 1021, plaintiffs had a legitimate
concern. This Court so found as a matter of fact based upon
plaintiffs’ trial testimony. It was, as this Court previously
stated in its May 16 Opinion, a surprising position for the
Government to have taken--but take that position it did, and it
must now own it.
The Government’s qualified position is hardly reassuring.
It follows a much clearer position of, essentially, “we can’t
tell you if a plaintiff will be detained for these specific,
actual activities.” This Court and (presumably) plaintiffs
reasonably assume that the Government’s first and second
positions were crafted carefully, and that the presence of
qualifiers in the second has real (if uncertain) meaning.
The clearest statement the Government could have provided
it did not. At the very outset of this case, the Government
could have moved for dismissal (e.g., with an early motion for summary judgment) based upon an affidavit of someone with
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authority who could have stated that protected First Amendment
activities occurring by Americans on American soil are not
subject to § 1021(b)(2). This would have made plaintiffs’
burden much more difficult.33 No such statement was made.
Shifting positions are intolerable when indefinite
military detention is the price that a person could have to pay
for his/her, or law enforcement’s, erroneous judgment as to what
may be covered.34
VI. THE JUDICIARY’S ROLE IN STATUTORY REVIEW
This case presents a justiciable case or controversy under
Article III of the Constitution. The Court now turns to its determination with respect to the merits and the question of appropriate relief. Set out below is an overview of how the
Court proceeds through various interlocking arguments.
Plaintiffs assert that § 1021(b)(2) violates their constitutional rights pursuant to the First, Fifth and
Fourteenth Amendments. The Government admonishes the Court to
33 Three plaintiffs are not American citizens (O’Brien, Wargalla, and Jonsdottir). However, their First Amendment activities do occur on U.S. soil, including via the Internet or travel to speeches.
34 There is an exception to the general mootness doctrine that provides a separate basis for declining to find this case moot--i.e., when an action is capable of repetition but is likely to evade review. See Murphy, 455 U.S. at 482. It is indisputable that any future Attorney General--or even the current one--may decide to change enforcement practices. The fact that such a “change of mind” could be coupled with indefinite military detention militates against a finding of mootness. The Court has found as a factual matter that these plaintiffs have engaged in activities about which the Government originally could give no assurances--and that they will continue to engage in similar activities in the future. The Government has explicitly declined to provide any assurances regarding any of plaintiffs’ future activities.
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avoid reaching the constitutional questions even if plaintiffs have standing. The Government argues that the judiciary should play no role here--or, at most, an ex post facto one in which it reviews habeas petitions challenging detention determinations.
The Court deals with this “quasi-abstention” issue first, then moves on to the merits of the constitutional questions raised and whether permanent injunctive relief is appropriate.
A. The Court as Guardian of the Constitution
It is certainly true that courts should, if possible, avoid reaching constitutional questions. See Califano v. Yamasaki,
442 U.S. 682, 692 (1979). This Court takes that principle seriously and has proceeded here only after careful consideration as to whether constitutional avoidance is possible. It is not.
The Court is also mindful of its oath. When squarely presented with an unavoidable constitutional question, courts are obliged to answer it. That principle traces its history back to the earliest years of this Country’s independent and constitutional existence. Federalist Paper No. 78 states:
No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves.
. . .
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Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
The Federalist No. 78 (A. Hamilton).
Chief Justice Marshall affirmed that principle in case law.
See Marbury v. Madison, 1 Cranch 137, 177, 2 L. Ed. 60 (1803)
(“[T]he constitution controls any legislative act repugnant to it. . . . It is emphatically the province and duty of the judicial department to say what the law is.”). He stated:
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.
. . .
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions . . . It would be giving the legislature a practical and real omnipotence . . .
The judicial power of the United States is extended to all cases arising under the constitution.
Id. at 178.
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There is no doubt, however, that, as John Marshall argued in 1800, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” Annals, 6th Cong., col. 613 (1800). Even the
President’s powers are, however, exercised in subordination to the applicable provisions of the Constitution. United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
When it comes to separation of powers, and the courts’ ability to intervene in constitutional questions, the Government has previously argued that this doctrine should preclude the judiciary from ruling on the constitutionality of certain statutes. The Supreme Court has rejected that argument. For instance, in Elrod v. Burns, 427 U.S. 347, 353 (1976), the
Government argued that the Court should not address the statute at issue based on principles of the separation of powers. The
Supreme Court stated:
More fundamentally, however, the answer to petitioners’ objection is that there can be no impairment of executive power, whether on the state or federal level, where actions pursuant to that power are impermissible under the Constitution. Where there is no power, there can be no impairment of power.
427 U.S. at 353.
Similarly, in Hamdi, the Supreme Court stated:
[W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts
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must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of the separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.
542 U.S. at 535-36.
A court, as here, presented with an unavoidable constitutional question, is obligated to rule upon it.
B. Judicial Review of Military Statutes
The Government also argues that this Court should decline to address the constitutional questions raised by § 1021(b)(2) particularly because of the President’s role and authority in
“foreign affairs.”35 (See Gov’t Trial Mem. at 1 (arguing that this context “should cause extreme hesitation” and “require the most exacting scrutiny to ensure that if the judicial power is to be exercised in such a far-reaching manner it is clearly within the Court’s jurisdiction to do so”), 11 (“Due respect for a coequal branch of government requires that Congress be taken at its word.”), 32 (“courts must ‘recognize that the
Constitution itself requires such deference to congressional choice’ in those areas due to separation of powers and the ‘lack of competence’ on the part of the courts”), 37 (“As a threshold
35 The Government’s argument regarding the President’s role in foreign affairs is particularly inapposite in the context of a statute in which a critical question is the legitimacy of its applicability to, inter alia, activities by Americans or on American soil.
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matter, a military-force authorization--or a statute like section 1021, restating and rearticulating part of such a force authorization--is not a proper subject of vagueness analysis”),
45 (“in this case, which involves the Constitution’s separation of powers in the context of national defense and security, it is particularly inappropriate to issue an injunction.”; “[B]ased on separation of powers principles, the courts have recognized that an injunction running against the President would be extraordinary”), 46 (“The reasons for denying injunctive relief against the President are all the more compelling where, as here, a plaintiff seeks relief against the President as
Commander-in-Chief under the Constitution”; “But more fundamentally, it is not for plaintiffs--or this Court--to determine which authorities are necessary or appropriate for the conduct of an ongoing war.”).)
At the August hearing, the Government stated quite clearly that the only role that the Court should have with respect to reviewing the scope of § 1021 is in the context of post- detention habeas reviews. Tr. II at 118. That is an unacceptable position.
First, as set forth above, when properly presented with an unavoidable constitutional question, this Court has an obligation to answer that question.
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Second, it is unreasonable to expect a habeas review that
can take many years to resolve, to provide adequate relief for
those detained. That must be particularly true when detention
arises from or relates to the exercise of protected First
Amendment rights, and when an individual may not have understood
(due to the statute’s lack of definitional structure) that his
or her conduct could subject him or her to detention. Some of
the recent Guantanamo habeas reviews have taken more than ten
years.36 If a court finds a detention unconstitutional, that is
far too long to wait. While awaiting determination on their
civil habeas review, the detained individual is deprived of his
or her liberty and, no matter what the official designation, he
or she is a prisoner. Suggesting that post-habeas review
provides sufficient relief is remarkable when even the
Government’s qualified position regarding plaintiffs’ activities
implicitly concedes that § 1021(b)(2) has been or may well be
used to detain someone for conduct protected by the First
Amendment. Any period of detention (let alone years) for what
could be an unconstitutional exercise of authority, finds no
basis in the Constitution.
Third, although the Government has cited a number of
authorities for the proposition that it would be extraordinary
36 See, e.g., Al-Bihani, 590 F.3d at 869 (acknowledging the petitioner’s 2001 detention), cert. denied, 131 S. Ct. 1814 (2011).
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for this Court to enjoin an act of the President, those cases
are inapposite. (See Gov’t Trial Mem. at 45-46.) This Court
does not disagree with the principle that the President has
primacy in foreign affairs. That is entirely different from
using the fact that the United States may be engaged in armed
conflict overseas to subject American citizens or others acting
on American soil to indefinite military detention. There is no
support for such an extension of Article II authority. The
cases cited by the Government relate to the President’s
performance of official duties, such as the counting of
representatives as set forth in Article I, § 2, cl. 3 of the
Constitution. See, e.g., Franklin v. Massachusetts, 505 U.S.
788 (1992).
Section 1021(b)(2) does not present a similar factual
situation. Instead, § 1021(b)(2) provides for indefinite
military detention of anyone--including U.S. citizens--without
trial.37 It is simply not the case that by prefacing this
statute with the provision “Congress affirms . . . the authority
of the President . . . to detain covered persons . . .,” it is
outside of the purview of judicial review. If that were the
37 At the time that he signed the NDAA into law, President Obama issued a signing statement with respect to § 1021 in which he stated that he would not subject American citizens to indefinite military detention “without trial.” This is a carefully worded statement--it is not saying that the President will not detain American citizens under § 1021--or what type of trial (with what rights) that individual might have. In any event, nothing prevents him from changing his mind since “signing statements” are not law; and a new administration could certainly take a different position.
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case, it would reveal an extraordinary loophole through which the legislative and executive branches could create immunity from judicial oversight simply by having Congress provide broad, undefined authorization. Under that theory, courts would be unable to review acts taken as a result of such authorization or the authorization itself. And, under that theory, referring to a unilaterally broadened authority as a “reaffirmation” would effectively ratify actions previously taken; this exercise of legislative or executive authority finds no basis in the
Constitution.
Contrary to the assertions of the Government, in ruling on the constitutional questions before it, this Court is doing nothing either extraordinary or unprecedented. There is a long history of courts ensuring that constitutional rights are protected, even in a military context.
In Ex parte Merryman, 17 F. Cas. 144 (C.C. Md. 1861), the
Supreme Court made clear that the President does not have the power to arrest; that the liberty of the citizen is not conferred on the President to do with what he will; and that no argument will be entertained that it must be otherwise for the good of the government. Id. at 149 (“And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in [Art. II of the Constitution]; but there is not a
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word in it that can furnish the slightest ground to justify the exercise of that power.”). The Court continued,
Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self- defense in times of tumult or danger. The government of the United States is one of delegated and limited powers; it derives its existence and authority altogether from the Constitution; and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted.
Id.
In the Brig Amy Warwick, 67 U.S. 635 (1862), the
Government had similarly argued that the judiciary should not-- or perhaps could not--rule on certain issues. There, the
Supreme Court stated “[counsel for the Government argues] in well-considered rhetoric, his amazement that a judicial tribunal should be called upon to determine whether the political power was authorized to do what it has done.” Id. at 645. The Court continued,
The principle of self-defense is asserted; and all power is claimed for the President. This is to assert that the Constitution contemplated and tacitly provided that the President should be dictator, and all Constitutional Government be at an end, whenever he should think that the ‘life of the nation’ is in danger . . . It comes to a plea of necessity. The Constitution knows no such word.
Id. at 648.
A few years later, in Milligan, the Supreme Court held:
“Neither the President, nor Congress, nor the Judiciary can
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disturb any one of the safeguards of civil liberty incorporated
into the Constitution, except so far as the right is given to
suspend in certain cases the privilege of the writ of habeas
corpus.” 71 U.S. at 4. The Court stated, “No book can be found
in any library to justify the assertion that military tribunals
may try a citizen at a place where the courts are open.” Id. at
73.
In Curtiss-Wright, 299 U.S. 304, while acknowledging the
President’s pre-eminent role in foreign affairs, the Supreme
Court also acknowledged that that power does not extend to all
domestic affairs. He cannot, for instance, determine whom to
arrest domestically; the scope of the arrest authority is
determined by criminal statutes. Id. at 330-32. Yet, it is
beyond cavil to suggest that criminal statutes are not subject
to judicial review.
In Justice Murphy’s Korematsu dissent, he reiterated the
principle that “[w]hat are the allowable limits of military
discretion, and whether or not they have been overstepped in a
particular case, are judicial questions.” 323 U.S. at 234
(citing Sterling v. Constantin, 287 U.S. 378, 401 (1932)).
Justice Jackson also dissented in Korematsu, stating, “I should
hold that a civil court cannot be made to enforce an order which
violates constitutional limitations even if it is a reasonable
exercise of military authority. The courts can exercise only
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the judicial power, can apply only law, and must abide by the
Constitution, or they cease to be civil courts and become
instruments of military policy.” Id. at 247.
As stated above, in its pre-trial memorandum the Government
relies heavily on the case which Justice Scalia has rightly
criticized as “not the Court’s finest hour”--Quirin. The
Government argues that Quirin establishes the constitutionality
of military detention and punishment of U.S. citizens on U.S.
soil. (See, e.g., Gov’t Trial Mem. at 33-34.)
It is certainly true that a United States citizen was among
the Germans who landed in Third Reich uniforms on the beaches of
Long Island, New York, with the intention of proceeding to New
York City and detonating explosive devices. Quirin, 317 U.S. at
7-8. However, those facts are a far cry from the broad sweep of
First Amendment rights into § 1021(b)(2). Although this Court rejects the principles of Quirin on the same basis as that so
well-articulated by Justice Scalia, it is bound to follow this
case as Supreme Court precedent if it is applicable to the
question before this Court. It is not.
As stated, the facts are inapposite. There, the Germans,
who landed in (at least partial) uniform (which they then buried
on the beach) brought the World War II battlefield to New York
soil; they were armed with destructive devices and following
orders of a country with which the United States was at war.
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Quirin is not a case in which an American, not in uniform, carrying arms, or reporting to a foreign government, was taken from his home in the United States, and detained by the military, for writing or having written works speaking favorably about enemy forces, or for raising questions regarding the legitimacy of American military actions. It is those activities which § 1021(b)(2) captures (so far as one can decipher from the
Government’s position). Quirin is inapposite here.
The Government is wrong to ground a wide-sweeping ability of the executive branch to subject anyone at all to military detention in Quirin. That argument eliminates Constitutional guarantees (under many provisions of the Constitution) in one fell swoop; it ignores as irrelevant all of the language, past and present, regarding limits on executive authority to arrest and--as applied to First Amendment activities--would privilege such detention ability above the prohibition that “Congress shall pass no law . . . abridging the freedom of speech.” The
Government’s reading of Quirin is therefore both wrong and dangerous and this Court rejects it.
VII. THE FIRST AMENDMENT
A. Section 1021(b)(2) Is An Impermissible Content-Based Restriction
First Amendment rights are guaranteed by the Constitution and cannot be legislated away. U.S. Const. amend. I (“Congress
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shall make no law . . . abridging the freedom of speech.”); see also Stevens, 130 S. Ct. at 1584; Lorillard Tobacco Co. v.
Reilly, 533 U.S. 525, 567 (2001) (“There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.”); United States v. Playboy Entm’t
Grp., Inc., 529 U.S. 803, 812 (2000) (laws designed or intended to suppress or restrict expression of specific speakers contradict basic First Amendment principles).
There is no doubt that the First Amendment protects the spoken and written word as well as the right of free association. DeJonge v. State of Oregon, 299 U.S. 353, 365
(1937) (peaceable assembly for lawful discussion cannot be made a crime); see also New York Times v. United States, 403 U.S.
713, 724 (1971) (“Open debate and discussion of public issues are vital to our national health. On public questions, there should be ‘uninhibited, robust and wide-open’ debate.” (citation omitted)); Watts v. United States, 394 U.S. 705, 708 (1969);
United States v. Robel, 389 U.S. 258, 263 (1967).
“‘As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”
United States v. Alvarez, 132 S. Ct. 2537, 2542 (2012) (citing
Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573
(2002)). In the recent Alvarez decision, the Supreme Court held
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that content-based restrictions of speech are presumed invalid
and that the government bears the burden of showing their
constitutionality. Id. A question for this Court is whether
§ 1021(b)(2), with its undefined breadth capturing both speech and non-speech activities, actually falls within the category of a content-based restriction. “[T]he principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of agreement or disagreement with the message it conveys.” Turner Board. Sys.,
Inc. v. Fed. Commc’ns Comm., 512 U.S. 622, 642 (1994) (quotation
marks and alterations omitted).
As this Court stated in its May 16 Opinion, § 1021(b)(2)
does have a legitimate, non-First Amendment aspect: catching and
brining to justice real terrorists. However, its breadth also
captures a substantial amount of protected speech and
associational activities. The Government’s qualified position
regarding plaintiffs’ activities demonstrates that the scope of
the statute is intended to be broad enough to capture some First
Amendment activities. Otherwise, why not have a “saving clause”
as in 18 U.S.C. §§ 2339A/B? Why not have said plainly, “No
First Amendment activities are captured within § 1021?” Why,
instead, have made such a qualified statement regarding what are
clearly First Amendment activities? That is, that they will not
be subject to § 1021(b)(2) so long as those activities are as
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they have described them, if accurate, without more, and
independent? And, why make it clear that such statement does
not apply to any (even similar) future activities?
Section 1021(b)(2) is not a traditionally content-based
restriction; encompassing content is not its only purpose or
achievement. However, covering content is at least one
purpose--and in so covering it “compel[s] speakers to utter or
distribute speech bearing a particular message.” See Turner
Broad. Sys., Inc., 512 U.S. at 642. In other words,
§ 1021(b)(2) has a content-directed aspect. Accordingly, the
Court finds that § 1021(b)(2) is subject to strict scrutiny.
Id.38
To pass this “most exacting scrutiny,” Turner Broad. Sys.,
Inc., 512 U.S. at 642, § 1021(b)(2) must be “justified by a
compelling government interest” and “narrowly drawn to serve
that interest.” Brown v. Ent’mt Merchants Ass’n, 131 S. Ct.
2729, 2738 (2011). Although there may be a very compelling
government interest--here, the exercise of detention authority
in the war on terror for the protection of the United States--as
set forth below, the Court finds that § 1021(b)(2) is not
narrowly tailored in any way. The imposition of indefinite
38 Even if the Court were to find that § 1021(b)(2) is not directed at speech, it still would find that speech is captured on the fringe of § 1021(b)(2) and thus, “imposes burdens on speech” that are “greater than [that which] is essential to the furtherance” of a governmental interest. Turner, 512 U.S. at 642, 662 (quotation marks omitted).
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military detention, without the procedural safeguards of precise
definition of what can subject an individual to such detention
(see Part IX infra (discussing plaintiffs’ Fifth Amendment challenge to § 1021(b)(2)’s vagueness) cannot be said to be narrowly tailored. Accordingly, the statute does not pass muster under the First Amendment itself and is unconstitutional for that reason alone.
B. Plaintiffs Have Made A Valid Facial Challenge
Plaintiffs have made a facial challenge to the
constitutionality of § 1021(b)(2) on the basis that it violates
core rights guaranteed by the First Amendment. This Court
agrees that the statute impermissibly encroaches on the First
Amendment and that a facial challenge is appropriate in these
particular factual circumstances.
As found as fact by this Court, plaintiffs are writers,
journalists, and activists whose work falls within the
protections of the First Amendment. There has been no claim by
the Government in this case that any of plaintiffs’ work falls
into one of the very narrow exceptions of protected speech--
i.e., speech which incites violence, or is obscene, defamatory,
or integrally related to criminal behavior. See, e.g., Alvarez,
132 S. Ct. at 2544; Stevens, 130 S. Ct. at 1584; Simon &
Schuster, Inc. v. Members of the New York State Crime Victims
Bd., 502 U.S. 105, 127 (1991); Roth v. United States, 354 U.S.
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476 (1957); Beauharnais v. Illinois, 343 U.S. 250, 254-55
(1952); Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969);
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949);
Chaplinsky v. New Hampshire, 315 U.S. 568, 57172 (1942). Thus, while it is certainly the case that not all speech or associational activities are necessarily protected by the First
Amendment, the Court here finds as a matter of fact that plaintiffs’ speech and associational activities are within protected categories (e.g., none is obscene, defamatory, seeks to incite violence, or is otherwise integral to a criminal act).
The Government has been on notice of the specifics of plaintiffs’ claims since receipt of the verified complaint.
Based on the procedures required by this Court, prior to the
March hearing, plaintiffs submitted sworn declarations setting forth the basis for their concerns; the Government then had an opportunity to depose any plaintiff who intended to testify at trial. The Government also had an opportunity to cross-examine plaintiffs at the March hearing. Bluntly stated, nothing was left to the imagination: the Government was on notice of each of the speech and associational activities in which each plaintiff engaged.
The Government knew that Hedges was a writer and journalist whose work took him to the Middle East and that in connection with his work he associates with members of the Taliban, al-
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Qaeda and other groups on the State Department’s Terrorist List; it knew about the type of articles written by O’Brien that, inter alia, have commented on aspects of military detention in
Guantanamo; it knew about the associational activities of
Wargalla, and that her organization has been on a list of terrorist or extremist groups; and it knew about Jonsdottir’s participation with WikiLeaks, her anti-(Iraq) war activism, and production of an anti-(Iraq) war film.
Based on this extensive and detailed prior notice, the
Court takes seriously the Government’s position at the March hearing that it could not provide any assurance that such activities would not subject any plaintiff to detention under
§ 1021(b)(2). See Hedges, 2012 WL 1721124, at *14-15 (citing
Tr. I). That the Government subsequently changed its position to a qualified one does not erase the essential point made:
First Amendment activities are not outside of § 1021.39
The Government’s initial position vis-à-vis plaintiffs--and indeed its qualified, second position--is consistent with the fact that the Government quite carefully avoids arguing that
§ 1021(b)(2) does not encompass activities protected by the
First Amendment. Indeed, read in this light, the qualifications of plaintiffs’ activities “as described,” “if accurate,”
39 Plaintiffs also assert claims under the Fourteenth Amendment, which makes the First and Fifth Amendment applicable to the states. That amendment does not actually provide plaintiffs a separate claim with separate elements.
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assuming they are “independent,” and “without more,” indicate
that protected speech and associational activities are within
§ 1021(b)(2)’s scope, but provide these plaintiffs with a
“limited pass.” Not once in any of its submissions in this
action or at either the March or August hearings has the
Government said, “First Amendment activities are not covered and
could never be encompassed by § 1021(b)(2).”
Instead, the Government’s arguments against plaintiffs’
overbreadth claim are crafted in terms of whether a facial
challenge is appropriate because of the extent to which the
statute has a legitimate sweep. (Gov’t Trial Mem. at 33-35.)
The Government argues that in the Court’s May 16 Opinion, this
Court did not properly weigh the legitimate sweep of the statute
against any infringement on First Amendment rights. (Id. at 35.)
The Government attempts to elide the implicit and extraordinary concession that First Amendment conduct is captured by § 1021 by referring back to its qualified position (that these plaintiffs, for the independent activities they have described, if accurately described, without more, would not be subject to detention under § 1021). (See Gov’t Trial Mem. at 20.) At the
August hearing, however, the Government made clear that that
assurance was not prospective--even as to protected First
Amendment activities--and went only so far as it went--which is
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quite narrow indeed. As set forth below, the Government’s arguments fail.
In Stevens, the Government similarly argued, “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of that speech against its societal costs.” 130 S. Ct. at 1585. Justice
Roberts wrote,
As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.
Id.; accord Alvarez, 132 S. Ct. at 2543-44.
In the recent Alvarez decision, the Supreme Court similarly rejected such an argument:
Permitting the government to decree this speech to be a criminal offense . . . would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.
Id. at 2547 (citation omitted). “The mere potential for the exercise of that power casts a chill, a chill the First
Amendment cannot permit if free speech, thought and discourse
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are to remain a foundation of our freedom.” Id. at 2548. The
Court then expounded,
The First Amendment itself ensures the right to respond to speech we do not like. . . . Society has the right and civic duty to engage in open, dynamic and rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.
Id. at 2550. Justice Kennedy noted that prior decisions cannot be taken as establishing a “freewheeling authority to declare new categories of speech outside the scope of the First
Amendment.” Id. at 2547 (citing Stevens, 130 S. Ct. at 1586).
In speech cases, this Court must ask whether a “substantial number of [a statute’s] applications” are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.
Stevens, 130 S. Ct. at 1587 (citing Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449 n.6
(2008)). The Government argues that this Court’s May 16 Opinion found that § 1021 has a plainly legitimate sweep. (Gov’t Trial
Mem. at 33.) That is correct with respect to the portion of §
1021 directed at prosecuting and detaining those involved in the attacks on September 11, 2001, and where § 1021(b)(2) can be read to cover members of al-Qaeda fighting U.S. forces on a battlefield outside of U.S. territory. However, the Government errs in its argument that this legitimate sweep ends plaintiffs’ facial challenge. (Gov’t Trial Mem. at 34.)
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The determinative question for this Court is the one posed in Stevens, as stated above--whether § 1021(b)(2)’s “plainly legitimate sweep” is outweighed by its “substantial number of” unconstitutional applications. Stevens, 130 S. Ct. at 1587; see also U.S. v. Williams, 553 U.S. 285, 293 (2008). How is a court to make such a measurement?
In Stevens, the Supreme Court acknowledged that a court cannot undertake the analysis without “first knowing” what the statute covers. Id. at 1587 (citing Williams, 553 U.S. at 293).
Despite the Government’s assurances that the statute at issue was not aimed at the conduct the Supreme Court focused on
(hunting), the Court nonetheless found that the statute had an
“alarming breadth.” Id. at 1588. So too here. As the Second
Circuit recently stated in Commack Self-Service Kosher Meats v.
Hooker, 680 F.3d 194 (2d Cir. 2012), “When a statute is capable of reaching expression sheltered by the First Amendment,” a greater degree of specificity is required so that parties may know what actions may fall within the parameters of a statute.
Id. at 213. Section 1021(b)(2) is devoid of the required specificity.
In addition, in Robel, the Supreme Court affirmed a finding that a section of the Subversive Activities Control Act impermissibly tread on First Amendment rights. The Court reiterated the principle that “precision of regulation must be
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the touchstone in an area so closely touching our most precious
freedoms.” 389 U.S. at 265 (citation omitted). In Robel, the
Court noted that it was not unmindful of congressional concern over the danger of sabotage in national defense industries, but noted that Congress needed to have a more narrowly drawn statute. “The Constitution and the basic position of First
Amendment rights in our democratic fabric demand nothing less.”
Id. at 267-68.
Further, courts should look at such restrictive regulations
with exacting scrutiny and ask whether it is “actually
necessary” to achieve its interests. Alvarez, 132 S. Ct. at
2549. Here, § 1021(b)(2) does not meet that standard. As set
forth above, there is no reason § 1021 could not have a
definitional framework that excludes protected conduct.
Moreover, there are a variety of criminal statutes that capture
speech or associational activities which are involved in
criminal activities. There is no reason for § 1021(b)(2) to
encroach on protected First Amendment rights.
The Government points to Williams in support of its
contention that § 1021(b)(2) is facially valid. (See Gov’t
Trial Mem. at 34-35.) In Williams, the Supreme Court upheld a
facial challenge to a criminal child pornography statute. The
statute was challenged as overbroad under the First Amendment
and impermissibly vague under the Fifth. In finding the statute
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constitutional, the Supreme Court relied on the fact that simply
the ability to conceive of some impermissible applications was insufficient to establish that the statute was overbroad. 553
U.S. at 303. Here, unlike in Williams, there is a trial record
setting forth specific First Amendment conduct that the
Government initially would not say was outside of § 1021’s
scope--but later said, perhaps the conduct would be outside of
its scope, but only if such activities met certain
qualifications. Plaintiffs’ activities are known. This is not
a situation as that in Williams requiring imagination or speculation.
Section 1021 must be measured against the backdrop of the
other, numerous statutes which are targeted more directly at
criminal conduct associated with terrorist activity, and of the
fact that the AUMF continues in force and effect. None of those
other statutes have been found to have encompassed protected
speech.
Notably, 18 U.S.C. § 2339B, the criminal statute discussed
above (and in Holder) aimed at proscribing “material support” of
terrorists, has a First Amendment saving clause. Section 1021
does not. There is a “catch-all” clause at the end of the
statute: “Nothing in this section is intended to limit or
expand the authority of the President or the scope of the
[AUMF].” NDAA § 1021(d). What does § 1021(d) really
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accomplish? Nothing of significance. The premise of
§ 1021(b)(2) is wrong--and, therefore, its logic (including
§ 1021(d)) misses. The title of § 1021 suggests that it is a
“reaffirmation” of the AUMF. As stated earlier and throughout
this Opinion, it is not. To the extent Congress understood that
the Executive’s unilateral expansion of the interpretation of
the AUMF fit within the original authorization granted to the
President, it was mistaken.
Thus, if § 1021(b)(2) is actually intended to do anything
at all new, its sweep in regards to First Amendment rights is
substantial, and is substantial in relation to whatever new
activity is captured by § 1021(b)(2). The Government’s
reluctance to define the scope of § 1021 leaves a one-sided
evidentiary record in favor of plaintiffs as well as an
ineluctable outcome for this Court. In other words, the Court
finds that § 1021(b)(2) is new. There is a logical flaw in
stating an intention not to expand authority when Congress has
set forth what is, in fact, new and broad authority. See
Stevens, 130 S. Ct. at 1590 (finding a saving clause inadequate
when it required an unrealistically broad reading of the
clause).40
40 The closest § 1021 comes to having a “saving clause” is § 1021(e): “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captures or arrested in the United States.” NDAA § 1021(e) (emphasis added). That
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It is all the more difficult for plaintiffs, citizens generally, or this Court to feel confident in a determination as to § 1021(b)(2)’s scope when so many of its terms remain undefined. This Court discusses the terms “substantially supported,” “associated forces,” and “directly supported” below.
Their vagueness presents constitutional concerns pursuant to the
Fifth Amendment, but also supports plaintiffs’ arguments here with respect to the First Amendment: if a plaintiff does not know what “substantially support” means, could a news article taken as favorable to the Taliban, and garnering support for the
Taliban, be considered to have “substantially supported” the
Taliban? How about a YouTube video? Where is the line between what the Government would consider “journalistic reporting” and
“propaganda”? What does “independent” mean? Would being paid by Al-Jazeera to do a series of articles run afoul of
§ 1021(b)(2)? Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is “modest” or “substantial”? What if the article is written in New York City and sent over the Internet?
Can the Government then choose whether to pursue the writer under § 1021(b)(2) and impose indefinite military detention, or saving clause, however, relates only to detention, specifically. Had Congress omitted the language emphasized above, the Court would not be entertaining this action as the “saving clause” would then encompass the First Amendment.
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can it choose to prosecute under 18 U.S.C. §§ 2339A-2339B with
full constitutional guarantees?41 These questions demonstrate only a few of the real problems with a statute that captures some amount of undefined activities protected by the First
Amendment. See Bd. of Airport Comm’rs of the City of L.A. v.
Jews for Jesus, Inc., 482 U.S. 569 (1987)(affirming facial
invalidation of a statute that reached a substantial amount of
protected speech); Schaumberg v. Citizens for a Better Env’t,
444 U.S. 620 (1980)(affirming a facial invalidation of a statute
on First Amendment grounds).
The type and amount of speech and associational activities
in which plaintiffs engage are varied. The Government has not
stated that such conduct--which, by analogy, covers any writing,
journalistic and associational activities that involve al-Qaeda,
the Taliban or whomever is deemed “associated forces”--does not
fall within § 1021(b)(2). Accordingly, this Court finds that a
substantial amount of conduct relative to the statute’s
legitimate sweep is captured. This is not a mathematically
precise exercise, nor could it be given the lack of
§ 1021(b)(2)’s definitional structure.
41 The Court notes that although 18 U.S.C. § 2339A contains a First Amendment saving clause, the recent indictment handed down in this District against Minh Quang Pham is based upon the transmission of “propaganda.” Indictment, United States v. Pham, 12 Civ. 423 (S.D.N.Y. May 24, 2012)
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IX. THE FIFTH AMENDMENT AND DUE PROCESS
Earlier this year, the Supreme Court reiterated that a
“fundamental principle in our legal system is that laws which
regulate persons or entities must give fair notice of conduct
that is forbidden or required.” See Fed. Commc’ns Comm. v. Fox
Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). People
of common intelligence must not have to guess at the meaning of
a statute that may subject them to penalties. Id. (citing
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). “This
requirement in clarity in regulation is essential to the
protections provided by the due process clause of the Fifth
Amendment.” Id. (citing Williams, 553 U.S. at 304).
If the vagueness of a statute leaves a person of ordinary
intelligence in doubt, as to what conduct falls within or is
excluded from its scope, it is impermissibly vague. Id. Such statutes also may allow or require predictable subjective judgments by law enforcement authorities as to when to enforce and when not. Id. The question is not whether a statute makes it difficult to prove an incriminating fact, but whether there is doubt as to what fact must be proved. Id.
In Fox, the Supreme Court stated, “Just as in the First
Amendment context, the due process protections against vague
statutes prevent parties from being at the mercy of noblesse
oblige.” 132 S. Ct. at 2318 (citing Stevens, 130 S. Ct. at
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1591). The degree of vagueness that the Constitution tolerates
depends in part on the nature of the enactment. See Rothenberg
v. Daus, No. 10-4411-cv, 2012 WL 1970438, at *2 (2d Cir. July
27, 2012)(citing Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 498 (1982)).
Plaintiffs have asserted that they do not understand the
terms “substantially supported,” “directly supported,” or
“associated forces.” The Court finds that plaintiffs who
testified are individuals of at least of common intelligence.
The Court finds credible their testimony that they do not
understand what these undefined words mean in the statute.
The reasonableness of this position is self-evident. When
the Government was asked by the Court what the words
“substantially supported” mean, it was unable to provide a
definition; the same was true for “directly supported.”42 There can be no doubt, then, these terms are vague. The Government did offer that “associated forces” should be defined according to the law of war, though the Court notes that in the March 2009
Memorandum the Government conceded that even in the war on terror, the laws of war are not well-defined. (See March 2009
Mem. at 1 (“This body of law, however, is less well-codified
42 This deficit was particularly odd in light of the Government’s contention that § 1021(b)(2) has been part of the AUMF for a decade; one would think that if that were so, then definitions would be readily available.
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with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban.”).)
In response to plaintiffs’ Fifth Amendment challenge, the
Government argues two seemingly contradictory points: (1) that military detention statutes are necessarily vague and are therefore not susceptible to a vagueness analysis (Gov’t Trial
Mem. at 37), but also (2) that “properly construed,” the statute is not impermissibly vague (id. at 40).
In formulating its argument that § 1021 is not susceptible to a vagueness challenge, the Government essentially concedes the statute’s vagueness: “[a]uthorizations of military force
(which encompass detention authority, [citation omitted]) are always, and necessarily, stated in general terms.” (Gov’t Trial
Mem. at 37-38.) In support of that position the Government cites a variety of statutes that were used to authorize the use of force against Vietnam, Germany (1917), Japan (1941), Spain
(1898), Mexico (1812) and Britain (1812). (Id. at 38 n. 24.)
These statutes, of course, were authorizations for this country to engage in war or open hostilities with foreign governments
(or organized foreign entities seeking recognition as the
“government”); not one of those statutes authorized indefinite military detention of U.S. citizens for conduct that could occur in their own home in New York City, Washington, D.C., Toledo,
Los Angeles--anywhere in this land.
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As discussed above, in comparing § 1021(b)(2) to the AUMF, it is incorrect to suggest that § 1021(b)(2) is a simple reaffirmation of the AUMF. It does more: it has a broader scope and directly refers to the law of war as an interpretive background. Section 1021(b)(2), which describes a category of
“covered person” who can be detained, does not exclude American citizens, and is not limited to individuals on the field of battle or who bear arms. It is unlike the military force authorization statutes the Government cites in its pre-trial memorandum.
To the extent that § 1021(b)(2) purports to confer authority to detain American citizens for activities occurring purely on American soil, it necessarily becomes akin to a criminal statute, and therefore susceptible to a vagueness analysis. Constitutional guarantees require that criminal statutes carry an array of due process protections. If it did not, then § 1021 must be interpreted as follows: Congress has declared that the U.S. is involved in a war on terror that reaches into territorial boundaries of the United States, the
President is authorized to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute “substantially” or “directly supporting”
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terrorist organizations. If this is what Congress in fact intended by § 1021(b)(2), no doubt it goes too far. Although
§ 1021(b)(2) does not, strictly speaking, suspend the writ of habeas corpus, it eliminates all other constitutionally-required due process (indeed, leaving only the writ).
The Government argues that the types of concerns that give rise to vagueness challenges cannot be squared with military-force authorization: § 1021 is designed to prevent those engaged in hostilities against the United States from returning to the field of battle, it does not proscribe particular criminal conduct. (Gov’t Trial Mem. at 39.) This argument dangerously elevates form over substance.
There can be no doubt that § 1021 provides that if an individual “substantially supports” the Taliban, he or she can be detained indefinitely. That certainly sets forth a penalty for conduct that is, accordingly, proscribed by virtue of the penalty of indefinite military detention without trial. In any event, if all that § 1021(b)(2) is doing is stating that although it does not proscribe conduct, it can be the basis for a citizen’s indefinite military detention, then it makes no sense to argue that a citizen cannot challenge that statute on vagueness grounds. A citizen has just as much interest--indeed, perhaps more--in understanding what conduct could subject him or her to indefinite military detention without a trial as he or
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she does in understanding the parameters of a traditional
criminal statute that carries a statutory maximum term of
imprisonment and cannot be enforced in the absence of full
criminal due process rights.
In Hamdi, the Supreme Court made its position perfectly
clear: “We reaffirm today the fundamental nature of a citizen’s
right to be free from involuntary confinement by his own
government without due process of law.” 542 U.S. at 531. The
Court confirmed that if a citizen has actually fought with the
enemy and is detained on the battlefield, the law of war and
realities of combat may render military detention necessary and
appropriate. Id. The Court stated:
Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.
Id. at 532 (citations omitted). In Robel, the Supreme Court stated a similar principle: “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the
Nation worthwhile.” 389 U.S. at 264.
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At the August hearing, the Government argued that this
Court’s role with respect to § 1021(b)(2) should be limited to
consideration of a detainee’s petition for release pursuant to a
writ of habeas corpus. That argument is premised upon an
extraordinary proposition: that American citizens detained
pursuant to § 1021 are not entitled to the presumption of
innocence and requirement that guilt be proven beyond a
reasonable doubt. In other words, relegating a court simply to
a habeas review means that the detainee has been divested of
fundamental due process rights. This becomes clear with
reference to the fact that the Government’s burden of proof with
respect to habeas petitions is “preponderance of the evidence,”
not “beyond a reasonable doubt” as required for criminal
convictions. See, e.g., Almerfedi v. Obama, 654 F. 3d 1, 5
(D.C. Cir. 2011)(preponderance of the evidence standard applies
to habeas petitions);43 see also Al-Odah v. U.S., 611 F.3d 8,
13-14 (D.C. Cir. 2010) (preponderance of the evidence standard
43 In Almerfedi, after a seven year detention, the United States District Court for the District of Columbia (Judge Friedman), found that the Government had not proven that it was more probable than not that Almerfedi was purposefully part of or materially supported the Taliban or al-Qaeda; the Court of Appeals reversed. See Almerfedi, 654 F.3d at 8 n.2. Almerfedi was alleged to be an al-Qaeda “facilitator” who frequented al-Qaeda guesthouses in Iran and helped fighters infiltrate Afghanistan. The district court found the Government’s evidence in support of these allegations insufficient based on a preponderance of the evidence. The Court of Appeals reversed--finding that the district court had made an error in its legal application of the preponderance standard by weighing evidence piece by piece rather than as a whole, and reversed with directions to deny the petition. On June 11, 2012, the Supreme Court denied certiorari. Almerfedi v. Obama, No. 11-683, 2012 WL 2076354 (June 11, 2012).
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is constitutional in evaluating a habeas petition from a
Guantanamo detainee). A “preponderance standard” simply asks
whether a fact is more likely than not--51 percent likely--
versus beyond a reasonable doubt.
This Court rejects the Government’s suggestion that
American citizens can be placed in military detention
indefinitely, for acts they could not predict might subject them
to detention, and have as their sole remedy a habeas petition
adjudicated by a single decision-maker (a judge versus a jury),
by a “preponderance of the evidence” standard. That scenario
dispenses with a number of guaranteed rights.
In its pre-trial memorandum, the Government spends only one
page of a 49-page memorandum defending the language of
§ 1021(b)(2). (Gov’t Trial Mem. at 41-42.) The Government
fails adequately to address why there is no requirement for
knowing conduct, to provide any specificity as to what
substantial support means and how that might compare, for
instance, to material support as defined in 18 U.S.C. §§ 2339A-
2339B. It never addresses the phrase “directly support” and it
never addresses the fact that “associated forces” is a moving
target.44
44 On the one hand, in its pre-trial memorandum the Government argues that § 1021(b)(2) is “tied to military action against al-Qaeda and Taliban forces authorized by the AUMF.” (Gov’t Trial Mem. at 42.) However, this argument is carefully crafted and does not exclude the concept of associated forces
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At the March hearing and in prior memoranda submitted in this matter, the Government had argued that the terms
“substantially supported,” “directly supported,” and “associated forces” had all been previously defined in case law. This argument is absent from the Government’s pre-trial memorandum
(though it may be implicit in its statement that § 1021 should be read “in context”). (See Gov’t Trial Mem. at 42.) In fact, the terms as used in § 1021(b)(2) have not been previously defined in case law; no case provides a solid reference point for the Government’s position.
First, the Government conceded at the March hearing that there is no case that dealt with what “directly supported” means. Tr. I at 216. That language first appears in the March
2009 Memorandum.
Second, no court has defined “substantial support.” There are cases in which detention pursuant to an allegation of
“material[] support” is at issue. See, e.g., Al-Bihani, 590
F.3d at 873. In Al-Bihani, the D.C. Circuit specifically rejected the wholesale importation of the “laws of war” into domestic law. It found, however, that the 2006 and 2009 MCAs provided for military detention of those individuals who
“purposefully and materially supported” enemy belligerents of
constituting groups the executive branch “believes” may be tied to al-Qaeda or the Taliban.
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the United States or its coalition partners (the MCAs are not,
however, statutes authorizing the use of military force). At
the August hearing in this action, the Government stated that
the MCA plays no role in the case before this Court. This Court
agrees: the phrase “materially supported” as used in Al-Bihani does not shed light on the interpretation of “substantial support,” as used in § 1021(b)(2). Moreover, even in the MCA there is a requirement that the “material support” be purposeful. Notably, § 1021(b)(2) does not require that the conduct which could subject an individual to detention be
“knowing” or “purposeful.”
Finally, in terms of “associated forces,” at the March
hearing, the Government referred repeatedly to that term being
defined by the laws of war. See Tr. I at 216-17. Of course, as
the Supreme Court said in Hamdi, the laws of war are not and should not be part of the domestic laws of the United States.
In addition, however, “associated forces” is an undefined, moving target, subject to change and subjective judgment. It would be very straightforward for Congress to alleviate this vagueness by tethering the term to a definition of (for instance) specific organizations.
Accordingly, the respective meanings of the terms at issue
are unknown; the scope of § 1021(b)(2) is therefore vague; but
the penalty of running afoul of it is severe. Section
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1021(b)(2) is, therefore, impermissibly vague under the Fifth
Amendment.
X. PERMANENT INJUCTIVE RELIEF
Section § 1021(b)(2) violates rights guaranteed by the
First, Fifth, and Fourteenth Amendments of the United States
Constitution. The Court turns finally to the question of
appropriate relief. Plaintiffs have sought only injunctive
relief.
In its May 16 Opinion, this Court preliminarily enjoined
enforcement of § 1021(b)(2) and invited Congress to amend the
statute to rectify its infirmities. See Hedges, 2012 WL
1721124, at *2, *27, *28. To date, Congress has not passed any
amendments.
The Supreme Court has set out a four-part test for a
determination as to the appropriateness of permanent injunctive
relief: plaintiffs must demonstrate (1) that they have or
imminently will suffer irreparable injury, (2) that monetary
damages will not redress the injury, (3) that, considering the
balance of hardships between the plaintiffs and Government,
injunctive relief is warranted, and (4) that the public interest
would not be disserved by the issuance of an injunction. See
Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756
(2010); eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391
(2006). Plaintiffs meet each of those factors.
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In this case, there is a factual record developed at a full evidentiary hearing upon which the Court can rely. As stated above, the Government chose not to submit any evidence whatsoever in support of its position, but relies on legal argument and cross-examination. The Court’s determinations regarding the elements plaintiffs must meet for issuance of a permanent injunction are based on its factual findings.
The factual record demonstrates that plaintiffs have
already been harmed and will continue to be harmed by potential
enforcement of § 1021(b)(2). At the trial of this matter,
Hedges, O’Brien, Wargalla, and Jonsdottir all testified to facts
showing a chilling of their written, oral or associational
activities. That is actual injury. Moreover, each of the
plaintiffs expects to continue to engage in the same activities
as he or she has in the past. Thus, whatever strength one can
attribute to the assurances the Government provided, those
assurances explicitly do not apply to any First Amendment
activities that were not stated at the March hearing, that have
happened since, or will happen in the future. Plaintiffs’
injury is imminent and ongoing. The law considers injury to
First Amendment rights to constitute irreparable harm. Elrod,
427 U.S. at 373; Salinger v. Colting, 607 F.3d 68, 81-82 (2010).
In addition, imprisonment without trial and for an
indefinite period certainly constitutes irreparable harm. A
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plaintiff need not wait until such detention has occurred to challenge the statute. See Holder, 130 S. Ct. at 2717.
The second element is also easily met. Plaintiffs are not suing--nor could they–-for monetary damages. They are suing to prevent indefinite military detention. Should such detention occur, money damages would never be adequate as a matter of law.
Cf. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1071
(7th Cir. 1976) (finding that monetary damages were insufficient to compensate the plaintiffs--a class of persons of Mexican ancestry--who had been subject to illegal stops and interrogations by the INS in violation of the Fourth Amendment).
The balance of the hardships also clearly weighs in plaintiffs’ favor. The Government already has ample authorization to pursue those actually involved in the attacks on September 11, 2001, and it has a host of criminal statutes
(referred to above) that it can use to prosecute those who engage in a variety of activities that endanger lives or constitute terrorism. According to the Government, § 1021 is merely a reaffirmation of the AUMF--a position with which the
Court disagrees. If, however, the Government is taken at its word, then enjoining its ability to enforce § 1021(b)(2) removes no tools from the Government’s arsenal. Most importantly, since
Congress may pass no law abridging rights guaranteed by the
First Amendment, enjoining enforcement of a statute that does
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just that cannot deprive Congress or the executive branch of that which they have no right to have.
The last element relates to the weighing of the public interest: does the public have a greater interest in preservation of its First Amendment and due process rights that are infringed by § 1021(b)(2), or in having the statute potentially available for use by law enforcement authorities?
Here too, the fact that, according to the Government,
§ 1021(b)(2) adds nothing new to their authority, is decisive.
Enjoining the statute will therefore not endanger the public.
The Government did not put forward any evidence at trial that it needed the statute for law enforcement efforts; in contrast, plaintiffs did present evidence that First Amendment rights have already been harmed and will be harmed by the prospect of
§ 1021(b)(2) being enforced. The public has a strong and undoubted interest in the clear preservation of First and Fifth
Amendment rights.
Accordingly, this Court finds that plaintiffs have met the requirements for issuance of permanent injunctive relief.
XI. CONCLUSION
For the reasons set forth above, this Court permanently enjoins enforcement of § 1021(b)(2) in any manner, as to any
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person. 45 The Court invites Congress to examine whether there
are amendments that might cure the statute/s deficiencies I or
whether l in light of existing authorization and existing
criminal statutes l § 1021 is needed at all.
This Court has stated its position l as directly presented
to it by the Government I that the AUMF and § 1021(b) (2) are not the same; they are not co-extensive. Military detention based on allegations of "substantially supporting" or "directly
supportingll the Taliban l al-Qaeda or associated forces, is not encompassed within the AUMF and is enjoined by this Order regarding § 1021(b) (2). No detention based upon § 1021(b) (2) can occur.
The Clerk of the Court is directed to terminate this action.
SO ORDERED:
Dated: New York l New York September 12, 2012
JL--~.~ Katherine B. Forrest UNITED STATES DISTRICT JUDGE
4S Plaintiffs assert five causes of action (see Verified Am. Compl. ~~ 29-44 (Dkt. No. 4-1)}, only four of which are addressed by this Opinion. Plaintiffs did not pursue Count II (a Fifth Amendment challenge to rendition of covered persons) and thus that claim is deemed abandoned for purposes of this proceeding.
112